[Senate Hearing 111-464]
[From the U.S. Government Publishing Office]


                                                        S. Hrg. 111-464
 
         THE MATTHEW SHEPARD HATE CRIMES PREVENTION ACT OF 2009 

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FRIST SESSION

                               ----------                              

                             JUNE 25, 2009

                               ----------                              

                          Serial No. J-111-33

                               ----------                              

         Printed for the use of the Committee on the Judiciary





















         THE MATTHEW SHEPARD HATE CRIMES PREVENTION ACT OF 2009
















                                                        S. Hrg. 111-464

         THE MATTHEW SHEPARD HATE CRIMES PREVENTION ACT OF 2009

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                     ONE HUNDRED ELEVENTH CONGRESS

                             FRIST SESSION

                               __________

                             JUNE 25, 2009

                               __________

                          Serial No. J-111-33

                               __________

         Printed for the use of the Committee on the Judiciary

                               ----------
                         U.S. GOVERNMENT PRINTING OFFICE 

56-684 PDF                       WASHINGTON : 2010 

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                       COMMITTEE ON THE JUDICIARY

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin       CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York         JON KYL, Arizona
RICHARD J. DURBIN, Illinois          LINDSEY O. GRAHAM, South Carolina
BENJAMIN L. CARDIN, Maryland         JOHN CORNYN, Texas
SHELDON WHITEHOUSE, Rhode Island     TOM COBURN, Oklahoma
RON WYDEN, Oregon
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
ARLEN SPECTER, Pennsylvania
            Bruce A. Cohen, Chief Counsel and Staff Director
                  Matt Miner, Republican Chief Counsel























                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

                                                                   Page

Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland, prepared statement...................................   124
Hatch, Hon. Orrin G., a U.S. Senator from the State of Utah, 
  prepared statement.............................................   149
Kennedy, Hon. Edward M., a U.S. Senator from the State of 
  Massachusetts, prepared statement..............................   226
Kyl, Hon. Jon, a U.S. Senator from the State of Arizona, prepared 
  statement......................................................   232
Leahy, Hon. Patrick J., a U.S. Senator from the State of Vermont.     1
    prepared statement...........................................   284
Schumer, Hon. Charles E., a U.S. Senator from the State of New 
  York, New York, prepared statement.............................   371
Sessions, Hon. Jeff, a U.S. Senator from the State of Alabama....     3

                               WITNESSES

Achtemeier, Mark, Associate Professor of Systematic Theology, 
  University of Dubuque Theological Seminary, Dubuque, Iowa,.....    23
Cohen, Janet Langahart, Chevy Chase, Maryland....................    21
Heriot, Gail, Commissioner, Commission on Civil Rights, Professor 
  of Law, University of California at San Diego, San Diego, 
  California.....................................................    24
Holder, Eric H., Jr., Attorney General, Department of Justice, 
  Washington, DC.................................................     4
Lieberman, Michael, Washington Counsel, Anti-Defamation League, 
  Co-Chair, Leadership Conference on Civil Rights, Hate Crime 
  Task Force, Washington, D.C....................................    29
Walsh, Brian W., Senior Legal Research Fellow, Center for Legal 
  and Judicial Studies, The Heritage Foundation, Washington, D.C.    26

                         QUESTIONS AND ANSWERS

Responses of Gail Heriot to questions submitted by Senator 
  Sessions.......................................................    40
Responses of Michael Lieberman to questions submitted by Senator 
  Leahy..........................................................    44
Responses of Eric H. Holder to questions submitted by Senators 
  Coburn and Sessions............................................    60

                       SUBMISSIONS FOR THE RECORD

AAUW, Lisa M. Maatz, Director, Public Policy and Government 
  Relations, Washington, DC, statement...........................    79
Achtemeier, Mark, Associate Professor of Systematic Theology, 
  University of Dubuque Theological Seminary, Dubuque, Iowa, 
  statement......................................................    80
African American Minister in Action and Diverse Array of 
  Religious Communities (AAMIA), Washington, DC:.................
    joint statement..............................................    83
    Rev. Timothy McDonald, statement.............................    86
    Hate Crimes Fact sheet.......................................    87
    Hate Crimes Myths of the Right...............................    88
    Rev. Kenneth Lee Samuel, statement...........................    89
    Rev. Robert P. Shine, statement..............................    91
    Rev. Byron Williams, statement...............................    92
    Rev. Rolen Lewis Womack, Jr., statement......................    94
Alliance Defense Fund, Gary S. McCaleb, Sr., Counsel and Erik 
  Stanley, Sr., Legal Counsel, Scottsdale, Arizona, memorandum...    95
American-Arab Anti-Discrimination Committee, Mary Rose Oakar, 
  President, and Kareem Shora, National Executive Director, 
  Washington, DC, statement......................................   102
American Psychological Association, Gwendolyn Puryear Keita, 
  Ph.D., Executive Director, Washington, DC, letter and 
  attachment.....................................................   111
Anti-Defamation League, Michael Liberman, Washington, Counsel, 
  and Jess N. Hordes, Washington, Director, Washington, DC, 
  letter.........................................................   116
Asian American Justice Center, Karen K. Narasaki, President and 
  Executive Director, Washington, DC, letter.....................   117
Attorneys General, a Communication from the Chief Legal Officers, 
  Miscellaneous State, letter....................................   118
Bennett, Sean, Private Citizen, letter...........................   122
Carey, Rea, Executive Director, National Gay and Lesbian Task 
  Force Action Fund, Washington, DC, statement...................   125
CenterLink, Terry Stone, Executive Director, Washington, DC, 
  statement......................................................   127
CNN.com, article.................................................   128
Cohen, Janet Langahart, Chevy Chase, Maryland, statements........   131
Consortium for Citizens with Disabilities, AG Bell, American 
  Association on Health and Disability, AAIDD, AAPD, American 
  Council of the Blind, American Counseling Association, American 
  Diabetes Association, American Dance Therapy Association, 
  AMRPA, American Music Therapy Association, ANCOR, AOTA, 
  American Psyshological Association, American Rehabilitation 
  Association, Amputee Coalition of America, ATAP, AUCD, Autistic 
  Self Advocacy Network, Autism Society of America, Bazelon 
  Center for Mental Health Law, Brain Injury Association of 
  America, Council for Learning Disabilities, COPAA, Council of 
  State Administrators of Vocational Rehabilitation, Disability 
  Policy Collaboration, Disability Rights Education and Defense 
  Fund, Disabled Action Committee, Easter Seals, Epilepsy 
  Foundation, Helen Keller National Center, Higher Education 
  Consortium for Special Education, Learning Disabilities 
  Association of America, Mental Health America, NAMI, NACDD, 
  National Association of County Behavioral Health and 
  Developmental Disability Directors, national Association of the 
  Deaf, National Association of School Psychologists, National 
  Association of Social Workers, National Association of State 
  Head Injury Administrators, National Center for Learning 
  Disabilities, National Coalition on Deaf-Blindness, National 
  Council on Independent Living, NDRN, National Down Syndrome 
  Congress, NDSS, National Fragile X Foundation, National 
  rehabilitation Association, National Organization of Social 
  Security Claimants' Representatives, NRC, NSSTA, NISH, PVA, 
  Research Institute for Independent Living, School Social Work 
  Association of America, Spina Bifida Association, TASH, The Arc 
  of the United States, United Cerebral Palsy United Spinal 
  Association, World Institute on Disability, Washington, DC, 
  statement......................................................   138
Eagle Forum, Phyllis Schlafly, Alton, Illinois, statement........   143
Family Equality Council, Jennifer Chrisler, Executive Director, 
  Boston, Massachusetts, statement...............................   145
GLSEN, Eliza Byard, Ph.D., Executive Director, Washington, DC, 
  statement......................................................   146
Harkins, Rev. Derrick, Senior Pastor, Nineteenth Street Baptist 
  Church, Washington, DC, statement..............................   147
Heriot, Gail, Commissioner, Commission on Civil Rights, Professor 
  of Law, University of California at San Diego, San Diego, 
  California, statement..........................................   152
Holder, Eric H., Jr., Attorney General, Department of Justice, 
  Washington, DC, statement and attachments......................   167
Human Rights Campaign, Joe Solmonese, Executive Director, 
  Washington, DC, statement......................................   200
Human Rights First, Elisa Massimino, CEO and Executive Director, 
  Washington, DC, statement......................................   201
Interfaith Alliance, Rev. C. Welton Gaddy, President, Pastor of 
  Preaching and Worship, North Minster Baptist Church, Monroe, 
  Louisiana, statement and attachment............................   208
International Association of Chiefs of Police, Russell B. Laine, 
  President, Alexandria, Virginia, statement.....................   214
Jewish Council for Public Affairs, Rabbi Steve Gutow, President, 
  Washington, DC, statement......................................   223
Jewish War Veterans of the United States of America, Ira 
  Novoselsky, National Commander, Washington, DC, statement......   225
Kennedy, Elke, Mother of Sean Kennedy, statement.................   228
Knight, Robert, Senior Writer/Correspondent, Coral Ridge 
  Ministries, and Senior Fellow, The American Civil Rights Union, 
  New York, New York, statement..................................   233
LCCR Education Fund, Washington, DC, statement...................   238
Levin, Professor Brian, Director, Center for the Study of Hate & 
  Extremism, California State University, San Bernardino, 
  California, statement..........................................   286
Lieberman, Michael, Washington Counsel, Anti-Defamation League, 
  Co-Chair, Leadership Conference on Civil Rights, Hate Crime 
  Task Force, Washington, DC, statement..........................   294
Local Law Enforcement Hate Crimes Prevention Act of 2009, 
  endorsing organizations........................................   305
National Association for the Advancement of Colored People, 
  Hilary O. Shelton, Senior Vice President for Advocacy/Director, 
  Washington Bureau, Washington, DC, statement...................   312
National Center for Transgener Equality, Washington, DC, 
  statement......................................................   314
National Coalition for the Homeless, Washington, DC, statement...   318
National District Attorneys Association, Scott Burns, Executive 
  Director, Alexandria, Virginia, statement and letter...........   324
National Religious Broadcaster, Craig L. Parshall, Esq., 
  Government Relations, Washington, DC, statement and attachment.   330
9to5, National Association of Working Women, Linda A. Meric, 
  Executive Director, Milwaukee, Wisconsin, statement............   349
Organization of Chinese Americans, George C. Wu, Executive 
  Director, Washington, DC, statement............................   350
People for the American Way, Michael B. Keegan, President, Marge 
  Baker, Executive Vice President for Policy and Program 
  Planning, Washington, DC, statement............................   351
Perkins, Tony, President, Family Research Council, Washington, 
  DC, statement..................................................   353
Religious Action Center of Reform Judaism, Rabbi David 
  Saperstein, Director and Counsel, Washington, DC, statement....   359
Resurgence on the Right, Mark Potok, Editor, Montgomery, Alabama, 
  statement......................................................   360
Saperstein, Rabbi David, Director and Counsel, religious Action 
  Center of Reform Judaism, Washington, DC, statement............   362
Schneck, Stephen F., Ph.D., Director, Life Cycle Institute, 
  Catholic University of America, Washington, DC, statement......   370
Southern Poverty Law Center's Intelligence Project, Montgomery, 
  Alabama, report and attachment.................................   373
Third Way, Faith in Public Life, Washington, DC, statement.......   403
Traditional Values Coalition, Washington, DC, statement..........   405
United Church of Christ, Rev. M. Linda Jaramillo, Executive 
  Minister, Washington, DC, statement............................   420
United States Commission on Civil Rights, Washington, DC:
    Michael Yaki, Commissioner, statement and attachments........   422
    Gerald A. Reynolds, Chairman, Gail L. Heriot, Commissioner, 
      Todd Gaziano, Commissioner and Peter N. Kirsanow, 
      Commissioner, statement....................................   428
United States Conference of Mayors, Manuel A. (Manny) Diaz, Mayor 
  of Miami, President, statement.................................   431
Walsh, Brian W., Senior Legal Research Fellow, Center for Legal 
  and Judicial Studies, The Heritage Foundation, Washington, DC, 
  statement......................................................   432
Women's Advocacy Organizations, Washington, DC, statement........   445
Wright, Wendy, President, Concerned Women for America on Hate 
  Crimes, Washington, DC, statement..............................   449


         THE MATTHEW SHEPARD HATE CRIMES PREVENTION ACT OF 2009

                              ----------                              


                        THURSDAY, JUNE 25, 2009

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                     Washington, DC
    The Committee met, pursuant to notice, at 10:10 a.m., Room 
SD-226, Dirksen Senate Office Building, Hon. Patrick J. Leahy, 
Chairman of the Committee, presiding.
    Present: Senators Feinstein, Schumer, Durbin, Cardin, 
Klobuchar, Kaufman, Sessions, Hatch, and Coburn.

OPENING STATEMENT OF HON. PATRICK J. LEAHY, A U.S. SENATOR FROM 
                      THE STATE OF VERMONT

    Chairman Leahy. Good morning. Today the Senate Judiciary 
Committee is going to address the serious and growing problems 
of hate crimes. I think the recent events we've seen in this 
country show that these vicious crimes are a continuing 
problem. The Senate has before it bipartisan legislation that 
would help law enforcement respond to this problem. The 
legislation has been stalled far too long and it's time to act.
    The Matthew Shepard Hate Crimes Prevention Act has been 
pending in the Senate for more than a decade. We've held 
previous hearings on this bill, the House has held many 
hearings on it. Both the House and the Senate have voted for 
this bill, over and over again.
    But when Senator Sessions requested a hearing on this 
legislation at last week's oversight hearing, I wanted to 
accommodate his request. The Attorney General, who just had 
been here and normally would not have been back for a number of 
months, agreed to return to the Committee. Attorney General 
Holder, I thank you for doing that. That, I appreciate very 
much.
    Now, we know, 2 weeks ago, just blocks away from this 
hearing room, a man entered the National Holocaust Memorial 
Museum and he shot and killed Stephen Johns, a security guard. 
It was a cowardly action by a white supremacist, that resulted 
in the death of a 39-year-old husband and father of an 11-year-
old son. This tragic murder is just the latest in an alarming 
string of hate crimes.
    Now, no doubt the courageous actions of Officer Johns and 
his fellow guards saved dozens of lives. And I regret that as a 
private security guard protecting a Federal facility, he was 
without a bullet-proof vest, because from what I've read about 
this case it would have saved his life.
    The facts set out in several recent reports show hate 
crimes and hate groups are growing nationwide. The Leadership 
Conference for Civil Rights just released a report on hate 
crimes that found that the number of hate crimes reported has 
consistently ranged around 7,500 or more annually. That's one 
for every hour of the day, 24 hours a day.
    A recent report from the Southern Poverty Law Center found 
that hate groups have increased by 50 percent since 2000, from 
602 hate groups in 2000 to 926 in 2008. Last Saturday, 2,000 
mourners filled the Ebenezer AME Church and they heard Reverend 
John McCoy say, ``The hope of the Holocaust Museum was that the 
world would never again allow such crimes against humanity, yet 
Officer Johns is another victim.''
    As mourners of many faiths and backgrounds listened, 
Reverend Grainger Browning said, ``The same hate that created 
slavery was the same hate that caused the Holocaust.'' I looked 
at the stray bullet holes that covered the door of the National 
Holocaust Museum, a jarring reminder. From the horrific 
slayings of Matthew Shepard and James Byrd during the 1990's, 
to the recent tragic murder of Luis Ramirez last year, its been 
clear that we have to do more to protect Americans from these 
crimes and I commend Senator Kennedy for his leadership in this 
effort over the years.
    I'm proud to be a co-sponsor of the Matthew Shepard Hate 
Crimes Prevention Act of 2009. It's bipartisan. It allows for 
Federal prosecutors to move in, and it focuses the attention 
and resources of the Federal Government. We have worked closely 
with the Justice Department to ensure that we're advancing a 
bill that's fair and constitutional and effective in cracking 
down on brutal acts of hate-based violence.
    The bill would strengthen Federal jurisdiction over hate 
crimes and support, but I'd add--this is very important to so 
many of us--not to substitute for State and local law 
enforcement, but strengthen State and local law enforcement. 
Receive strong support from State and local law enforcement 
organizations across the country. The legislation would combat 
acts of violence motivated by hatred and bigotry, but does not 
target pure speech, however offensive or disagreeable. It 
certainly does not target religious speech. We were very 
careful in crafting it. We wanted to respect constitutional 
limits, and also, in a country like ours, the differences of 
opinion. So I'm glad the Attorney General is here, and I thank 
him for rearranging his schedule to be here.
    But I also see in the audience, and I welcome, Janet 
Langhart Cohen, a dear friend of both my wife and me. She's the 
wife of a former Secretary of Defense, a former Senator, a 
former member of this Committee, and I served with them in 
those capacities, William Cohen.
    I mention this because her husband was at the Holocaust 
Museum at the time of the shooting. He knew Stephen Johns, the 
security guard who was killed. So, I look forward to hearing 
from her, Michael Lieberman of the Anti-Defamation League, and 
Dr. Mark Achtemeier, and other witnesses today.
    I'm going to put my whole statement in the record. I know 
that we have health care and everything else going on, so it's 
a busy time.
    [The prepared statement of Chairman Leahy appears as a 
submission for the record.]
    Chairman Leahy. Senator Sessions, we tried to accommodate 
you by having this hearing, and here we are.

STATEMENT OF HON. JEFF SESSIONS, A U.S. SENATOR FROM THE STATE 
                           OF ALABAMA

    Senator Sessions. Thank you, Chairman Leahy. I look forward 
to the hearing. I am sorry that a number of our members will 
not be able to be here today because of the health care matter 
that's moving on and is of huge importance. I know Senator 
Hatch is going to have to leave, and Senator Kyl, likewise, is 
a leader in that, as is Senator Grassley, of course, and 
Cornyn. And Dr. Coburn is not a member of the committee, but is 
deeply involved in it. So I'm sorry that we probably won't have 
more people here today.
    Let me just say that I believe deeply in the Federal legal 
system, that we need to get it right. I've had 15 years of 
practice in that system. The kind of crime we had at the 
Holocaust Museum is just heartbreaking and unacceptable and 
needs to be prosecuted to the absolute fullest extent of the 
law, as any of these kind of vicious crimes need to be 
prosecuted, and I believe they will.
    I would note that a security guard at some other location 
who's murdered in the course of trying to do that duty and help 
others probably would not be caught and covered by this, 
probably would not get the benefit of additional Federal 
prosecution. Perhaps, I think, this legislation would appear to 
cover the Holocaust Museum case, and I would certainly admit 
that and concede that.
    Let me just say the way I analyze it. The original Civil 
Rights Act that protected people in the carrying out of their 
civil rights duties and protected them from attack because of 
their race was based on a demonstrated need. There was, indeed, 
I am sad to say, a situation in significant parts of our 
country where African-Americans were not protected.
    It was easy to demonstrate that there was a double standard 
of justice and they were not being protected, and often murders 
or attacks occurred and insufficient prosecutions occurred. 
Sometimes no prosecution. So there was a justification for 
that, and that law was passed. I have charged it as a U.S. 
Attorney, and I believe it was helpful in certain cases.
    I would just say, therefore, that when we now carve out a 
different class of people that may also deserve that kind of 
protection, we need, and owe it to the American people and to 
our legal system, to explain why these cases are such, that 
they're not being adequately prosecuted by State courts, why 
they're not being adequately prosecuted throughout the system, 
and why we need to have the Federal Government take over 
prosecutions that they have not taken over before.
    A lot of people don't know that a murder that occurs when 
someone picks up a rock and murders somebody with it within 
some State border, that is not a Federal crime and probably 
cannot be made a Federal crime. Maybe it can be; probably not, 
because there's not a nexus to interstate commerce or those 
kind of things. Murders occur all over America every day. 
Robberies, assaults, rapes, burglaries occur every day, and 
those are handled by our State and local jurisdictions. 
Probably 90-plus percent of criminal prosecutions in America 
are done by our States and local governments. They do a pretty 
good job.
    In fact, all of us who have been involved in prosecutions 
know that police and prosecutors and State governments are far 
more effective today than in the past. They are better trained, 
many of them have college degrees, the police officers do, and 
they have access to more technology and equipment. There's more 
sharing of expertise among agencies, and they're doing a much 
better job. I think the FBI statistics would show that hate 
crimes have declined over the last 10 years.
    So one of the things that's important is to know, do we 
have a problem of significant numbers of cases--even less than 
significant, a noticeable number of cases--not being prosecuted 
in State and local governments relating to these kinds of 
issues that we're calling hate crimes? Senator Hatch has for 
years proposed a study to examine just that, and for years we 
never got it done. I think that would be a preliminary step in 
this process.
    Also, people are concerned about how we are picking and 
choosing the people who receive the extra protection. Are we 
doing that wisely on a principled basis, one that can be 
defended?
    So, Mr. Attorney General, we're glad you're here. It is an 
important hearing. We want to do this right. I would say, 
again, I believe people who commit these horrible crimes need 
to have the stiffest punishment imposed, and certainly support 
that and look forward to discussing these issues this morning.
    Chairman Leahy. Thank you.
    Mr. Attorney General, the floor is yours.

 STATEMENT OF HON. ERIC H. HOLDER, JR., ATTORNEY GENERAL, U.S. 
             DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Attorney General Holder. Thank you, Mr. Chairman. Chairman 
Leahy, Ranking Member Sessions, and members of the committee, 
thank you for the opportunity to appear before you today to 
discuss The Matthew Shepard Hate Crimes Prevention Act of 2009. 
This administration strongly supports this vital legislation, 
which will help protect all Americans from the scourge of the 
most heinous, bias-motivated violence.
    Nearly 11 years ago--11 years ago--on July 8, 1998, I 
testified before this Committee as Deputy Attorney General to 
urge passage of an almost identical bill--11 years ago. While 
it is unfortunate that 11 years have come and gone without this 
bill becoming law, I am confident that we can now make the 
important protections that it offers a reality. Indeed, one of 
my highest personal priorities upon returning to the Justice 
Department is to do everything that I can to help ensure that 
this critical legislation finally becomes law.
    As the recent tragedy at the Holocaust Museum demonstrates, 
our Nation continues to suffer from horrific acts of violence 
inflicted by individuals consumed with bigotry and prejudice. 
Today, just as when I first testified on this issue in 1998, 
bias-motivated acts of violence divide our communities, 
intimidate our most vulnerable citizens, and damage our 
collective spirit.
    The FBI reported 7,624 hate crime incidents in 2007, which 
is the most current year for which the FBI has complete hate 
crime data. Recent numbers also suggest that hate crimes 
against certain groups are on the rise, such as individuals of 
Hispanic national origin. Between 1998 and 2007, more than 
77,000 hate crime incidents were reported by the FBI. That is 
nearly one hate crime for every hour of every day over the span 
of a decade!
    President Obama strongly supports this bill. As you know, 
he co-sponsored similar legislation when he was in the Senate. 
On April 28th of this year, the President said, as he urged, 
``Members of both sides of the aisle act on this important 
civil rights issue by passing this legislation to protect all 
of our citizens from violent acts of intolerance.''
    The President and I seek swift passage of this legislation 
because hate crimes victimize not only individuals, but entire 
communities. Perpetrators of hate crimes seek to deny the 
humanity that we all share, regardless of the color of our 
skin, the god to whom we pray, or the person who we choose to 
love.
    The time is now to provide our Federal, State, local, and 
tribal law enforcement officers with the tools that they need 
to effectively prosecute and deter these heinous crimes. The 
time is now to provide justice to victims of bias-motivated 
violence and to redouble our efforts to protect our communities 
from violence based on bigotry and prejudice.
    For these reasons, I strongly urge passage of The Matthew 
Shepard Hate Crimes Prevention Act of 2009. I'm pleased to 
submit the full text of my prepared remarks for the record and 
I look forward to answering any of your questions. Thank you.
    [The prepared statement of Attorney General Holder appears 
as a submission for the record.]
    Chairman Leahy. Thank you very much, Attorney General. We 
did pass the Federal hate crime legislation in 1968 in the wake 
of the assassination of civil rights icon Martin Luther King. 
That was 6 years before I came to the Senate. But when we see 
the shooting at the Holocaust Museum, the beating death of a 
Latino man in Shenandoah, Pennsylvania, the gang rape of a 
woman in San Francisco because of her sexual orientation last 
December, these are very, very serious things. I appreciate 
what you said about your testimony as Deputy Attorney General. 
I remember that very, very well.
    Now, I remember you were asked at the time, but how do you 
respond? These are really basically local crimes. I mean, every 
State has laws against murder, every State has laws against 
assault. Why can't we just say, OK, let the States worry about 
it?
    Attorney General Holder. Well, in some ways I don't 
disagree with that statement, in the sense that what we're 
looking for here is Federal jurisdiction that would come into 
play if there was a demonstrated need, if the States did not 
have the capacity, did not have the willingness, the desire to 
prosecute these kinds of cases.
    In terms of the legislative expansion that we're looking 
for here, we're looking to have the Federal Government have 
tools to backstop the efforts that would be done by our State 
and local partners. There's no question that with regard to the 
vast majority of these crimes they would be handled by the 
State, but for those cases that pose particular problems or 
expose an inability or unwillingness for the States to 
prosecute them, we think that there is the demonstrated need 
for the Federal Government to become involved.
    Chairman Leahy. Is there any violation of the double 
jeopardy clause of the Constitution in this legislation?
    Attorney General Holder. No. We have looked at this. We've 
had the very bright people in the Justice Department's Office 
of Legal Counsel and other places, and we do not think that 
there is any problem in that regard.
    Chairman Leahy. I look at a couple of different issues: one 
is as a former State prosecutor, and also as the son of a 
printing family, owned a printing business. Could this be in 
any way used to infringe on people's First Amendment rights, 
either their First Amendment rights of speech or their First 
Amendment rights of religion?
    Attorney General Holder. No. This is a bill that is 
designed to prosecute and hold people accountable for conduct, 
not for speech. This does not in any way infringe upon a 
person's right to say things that I would vehemently disagree 
with, even about the protected categories of people that we 
want to expand the bill to cover. This is all about preventing 
violence and not about inhibiting speech.
    Chairman Leahy. This bill adds crimes against people 
because of their gender, their disability, or sexual 
orientation, or gender identity. Is that an important issue 
today?
    Attorney General Holder. I think it absolutely is. If one 
looks at the hate crimes statistics over the last decade, you 
will see that the third largest component of hate crimes 
involves sexual orientation. About 12,000 of those crimes over 
the last decade, 16 percent of all of the hate crimes that have 
been reported, deal with sexual orientation motivated. Then if 
you look at the other categories, gender, disability, gender 
identity, we believe that Federal law should cover those 
categories of hate-related crime.
    Chairman Leahy. Again, going back to the State law 
enforcement, because that will be an issue, in the hate crimes 
legislation we have now there is a certification procedure so 
you're not just coming in and telling a State to get out of the 
way. We have put similar, some would say more exacting, 
certification in this bill. Has that certification procedure 
worked well in the past on hate crimes?
    Attorney General Holder. Yes, I think it has. I think that 
the legislation, wisely, has a certification provision in it. 
It assures that before the Federal Government would become 
involved in any hate crime prosecution, there would have to be 
sign-off at the highest levels of the Justice Department, 
either by the Attorney General or by the Attorney General's 
designee, which I think is appropriate.
    Chairman Leahy. I know in the House, our bill allows for 
prosecutions for you or your designee--and you said it would be 
the Deputy--in terms of, prosecution by the United States is in 
the public interest is necessary to secure substantial justice. 
The House bill has as a criteria where a State doesn't object 
or doesn't intend to exercise jurisdiction. Which version is 
better?
    Attorney General Holder. We prefer the Senate provision. 
One of the things that we are concerned about is the 
possibility--at least the possibility--that a State and local 
jurisdiction would be unwilling to pursue one of these matters 
and to put the Federal Government's ability to become involved 
in this in the hands of a jurisdiction that perhaps would not 
want to become involved or would not want the Federal 
Government to become involved, we think is inappropriate. We 
think there's a balance that is struck here by ensuring that 
the highest levels of the Justice Department make the 
determination that the Federal Government should be involved.
    Chairman Leahy. Thank you.
    Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman. I know Senator 
Hatch has to leave, and I would yield to him at this time.
    Senator Hatch. Well, thank you for your courtesy, Senator 
Sessions. I appreciate it.
    Mr. Attorney General, in the many years that I've been 
involved in this debate I've asked proponents of Federal hate 
crimes legislation for evidence that crimes motivated by 
prejudice and bias are not being punished at the State level, 
and you've been very hedging here too, because you know most 
all of them are. Certainly there are individual stories wherein 
a perpetrator received a sentence that may have been deemed too 
lenient, and there are, I'm sure, many accounts of crimes being 
punished as something other than a ``hate crime''.
    Now, you cited a few of these cases in your written 
testimony, but I've seen little evidence that there is a trend 
among State law enforcement officials to ignore violent crimes 
motivated by prejudice, or that State court judges are more 
likely to give too lenient sentences in those cases than they 
are in others involving crimes.
    Now, do you have any evidence that this is the case, that 
there is a trend that, specifically with regard to bias-
motivated crimes, justice is not being served in this country?
    Attorney General Holder. I'm not sure that I would say that 
I see a trend. I think that State and local prosecutors are 
partners and do a good job. But I also know, as I noted in my 
prepared remarks, that there are instances where there is the 
need for the Federal Government to come in where a State or 
local locality, for whatever reason, has decided not to pursue 
a case where I think it is clearly appropriate or does not have 
the ability to do that. One of the things that I think we 
should focus on here is that this would allow----
    Senator Hatch. I don't mean to interrupt you, but I have to 
on that. Do you know of any instances where that's the case?
    Attorney General Holder. Well, I have some in my prepared 
remarks.
    Senator Hatch. OK.
    Attorney General Holder. I think about the case, I think it 
was in California, involving threats that were made before an 
assault actually occurred and that matter was not pursued. I 
believe it involved people of South Asian origin. There are 
other provisions or other incidents, as I said, that I 
referenced in my----
    Senator Hatch. Will you submit those to us so we can--I 
mean, we need to look at that.
    Chairman Leahy. They have been made part of the record.
    Senator Hatch. Are they? Okay. Well, I'd like to see as 
many cases as you can come up with that would help us to 
understand that this is a major problem, because I haven't seen 
it as one.
    Attorney General Holder. Well, one of the things I would 
say, is the bill also allows us, because it does away with 
those six protected activities, it gives the Federal Government 
a greater ability to help our State and local partners where 
perhaps they want to prosecute a case like this, but don't have 
the technical expertise, the technological capability of 
building such a case. This would allow the Federal Government 
to partner with our State and local counterparts.
    Senator Hatch. All right. Well, I'm curious about your 
interpretation of some of the language in this bill. As you 
know, it would create two new Federal offenses. To paraphrase 
the bill, both of these provisions would punish those who cause 
bodily harm to a person ``because of'' the status, race, 
religion, sexual orientation, et cetera of ``any person''.
    Now, this, I believe, poses two problems. First, instead of 
requiring that a defendant actually be motivated by animus or 
prejudice, the bill only requires that they be motivated by the 
status or group membership of a person. Now, this would appear 
to make all rapes, because they are motivated by a person's 
gender, punishable as hate crimes. Now, they're heinous crimes, 
no question about that. But even worse, robberies resulting in 
bodily injury could be classified as hate crimes if the victim 
was chosen because of his or her gender or disability.
    Now, you said in your statement that Justice Department 
policy would prevent such prosecutions from taking place. But 
is there anything in this legislation that would prevent such 
prosecutions down the line? Also, the bill doesn't limit the 
applicability of crimes motivated by the identity or group 
membership of the victim. A defendant, therefore, could be 
punished if he was motivated by his own membership in a 
protected group, the victim's membership, or even that of an 
unrelated third party.
    Now, with this legislative language, couldn't the bill 
conceivably be construed to cover almost any violent crime?
    Attorney General Holder. No, I don't think so. If one looks 
at the bill, there are specific protected categories that have 
to be proven to be the motivating factor behind the violent act 
that the person engaged in. The mere membership of a defendant 
in a particular group would not be sufficient to trigger the 
jurisdiction of this statute. The focus really is on, what was 
the motivation of the defendant in perpetrating the violent 
act? I do not think that the statute, as drawn and as intended 
to be enforced, is overly broad, as I think you're suggesting.
    Senator Hatch. My time is up. Thank you, Mr. Chairman.
    Chairman Leahy. Thank you very much, Senator Hatch.
    Senator Feinstein.
    Senator Feinstein. Thank you very much, Mr. Chairman.
    As the Attorney General was testifying, I was thinking back 
to the 103d Congress, where I introduced The Hate 
Crimes Enhancement Act, and have tried to get the race, creed, 
color extended to gender, sexual orientation, disability, and 
we have always failed. So, this is really the opportunity to do 
this in this bill.
    Second, I think this bill presents the caution to States, 
to counties, to look deeply to see if a crime of violence, in 
fact, is motivated by hate, not dismiss it. I think in our 
culture, and in my State in particular where minorities are 
becoming majorities of population in some areas--an Asian 
couple on a beach at Tahoe gets beaten up. Why? Look deeply 
into that. This law only applies to a felony and a crime of 
violence.
    The backstop of the law is that the Federal Attorney 
General, if the State refuses to prosecute, can also look into 
the case and make a decision, well, this case, in fact, does 
deserve prosecution. The State has not done it, therefore the 
Federal Government will. These crimes happen. You know, the 
lesbian couple in a bar. They leave. One woman is tracked. She 
is raped. I've heard people say, oh, well, she deserved it. 
This would give the Federal Government the opportunity to look 
into that crime to see if it's motivated by hate.
    There's one other point I want to make. Hate crimes are 
really the worst. They are scarring forever on the individual, 
they are brutal when they happen--the Matthew Shepard case is 
obviously a case in point--and they should have Federal 
oversight.
    So if there is a country or if there is a State that 
refuses to prosecute, that ignores the element of hate in the 
commission of a felony, the Federal Government can stand up and 
say, we're going to prosecute. I think the time is long past 
for this. I really sincerely believe it's going to be helpful 
in diminishing these crimes. I come from a State where the 
immigration debate, some of it, has been a part of hate. People 
have been beaten up because they happened to be Hispanic, they 
happened to be standing on a street corner where somebody 
doesn't want them.
    If the State ignores this, the Attorney General can look at 
it and say, we have decided to prosecute this case. So I have 
no questions, other than, I really believe 10 years is too long 
to wait for it. I really believe in 10 years these hate crimes 
are increasing, and I really believe that backstopping States 
with the ability of the Attorney General to take action is 
important. So, I'm very happy to be here this morning. Thank 
you, Mr. Chairman.
    Chairman Leahy. Senator Sessions.
    Senator Sessions. Thank you, Mr. Chairman.
    Mr. Attorney General, I think you are incorrect in 
referring to Senator Hatch's question about the need to prove 
animus or ill will. The statute, on page 10, says if you 
receive an injury to any person ``because of the actual or 
perceived race, color, religion, or national origin of any 
person'', and the same language is in the next provision--and I 
would note that the United States Commission on Civil Rights, 
which six of the eight members have written this body and this 
Senate Committee and the President to oppose this legislation, 
say that the legislation does not ``require that the defendant 
be inspired by hatred or ill will in order to convict.'' It is 
sufficient if he acts ``because of'' someone's actual or 
perceived race, color, religion, national origin, gender, or 
sexual orientation.
    They note that a robber might well steal only from women. 
Rapists seldom are indifferent to the gender of their victims. 
They note that the objective meaning of the language and 
considerable legal scholarship would certainly include those 
kinds of offenses as being covered by the Act.
    How do you respond to that?
    Attorney General Holder. Well, I disagree with the 
interpretation.
    Senator Sessions. Well, where in here does it say it has to 
have ill will and animus in the statute?
    Attorney General Holder. Well, it talks about--it says, 
``because of''. It seems to me that that is what defines the 
motivation of the person, the person who is the potential 
defendant, or is the defendant, has to have acted because of 
the victim's identity or inclusion in one of the protected 
groups. It does not simply say that--I don't read it nearly as 
broadly as you indicated. It seems to me that there has to be 
proof that the motivating factor was that the victim's 
inclusion in, and then the person's motivation for, getting at 
a person in one of those groups.
    Senator Sessions. I would just say that Senator Hatch 
doesn't agree, and neither does the Civil Rights Commission of 
the United States, who opposes this legislation, stating, in 
effect, these are double prosecutions, are not technically 
violations of the double jeopardy clause. I think that's 
correct. I think you could technically argue that we have two 
separate sovereigns. But it is a violation of the double 
jeopardy spirit of the Constitution. And we can take this step, 
perhaps, lawfully, but should we, is the question.
    Let me ask----
    Attorney General Holder. One thing I would point out, 
Senator, is that the section ``because of the actual or 
perceived race, religion, color, or national origin of any 
person'' is the same as the current hate crimes law, 18 USC 
245. So I don't see that. Although we expand the number of 
groups, we're not in any way changing what I think is the 
actionable language, and that's why I don't think that the 
concern about this being overly broad is necessarily justified.
    Senator Sessions. I think it is overly broad. I'm pretty 
confident of that.
    Let's take a situation. I don't know how else to think this 
thing through. A man speaks forcefully for gay rights at a town 
hall meeting, an argument ensues, and then he's attacked by an 
individual. They get in a fight and one assaults him and says 
hateful words to him when he does that. Would that be a hate 
crime?
    Attorney General Holder. It would depend on--you know, the 
facts are the things that will define----
    Senator Sessions. I mean, on the surface of it, that would 
meet the standard. Would it or would it not?
    Attorney General Holder. Well, it would depend on what was 
the motivation of the defendant? Did the defendant hit the 
other person because they were just involved in a dispute, an 
argument, and the person just happened to--the defendant just 
happened to go off, or did the defendant strike the person 
because of his----
    Senator Sessions. His gender?
    Attorney General Holder.--sexual orientation.
    Senator Sessions. So it wouldn't be the words, but it would 
be the actual sexual orientation, or gender, or race of the 
person that would make the decision?
    Attorney General Holder. Well, you have to look at the 
totality of the circumstances in trying to decide, what was the 
motivation of the person who actually committed the crime? Was 
it a person who was just mad, and as we sometimes get mad, and 
therefore hit the person? Or was the person----
    Senator Sessions. Well, he used racial slurs, say, 
hypothetically, before he attacked.
    Attorney General Holder. Well, that would be an indication 
that there is the possibility that this----
    Senator Sessions. All right. What about a minister who goes 
to the town hall meeting and quotes the Koran and Scripture and 
says homosexual activities are immoral, and he's attacked by a 
gay activist?
    Attorney General Holder. Well, the statute would not 
necessarily cover that. On the other hand, I think that the 
concern that has been expressed has actually been the one that 
has been reversed, where----
    Senator Sessions. So is that a reason for someone to think 
that this is odd? Does that strike you as odd, that one might 
be a crime and another one, not?
    Attorney General Holder. No. The question--you're focusing 
on speech there, and the question really is not----
    Senator Sessions. Well, I'm talking about assaults.
    Attorney General Holder. Well, but you're talking about--
if, in fact, the person--we're talking about crimes that have 
an historic basis, groups who have been targeted for violence 
as a result of the color of their skin, their sexual 
orientation. That is what this statute is designed to cover. 
The fact that somebody might strike somebody as a result of 
speech--again, somebody gets into an argument, and we don't 
have the indication that the attack was motivated by a person's 
desire to strike at somebody who was in one of these protected 
groups, that would not be covered by the statute.
    Senator Sessions. Well, I think that's part of the problem. 
The elderly are not a protected group, security guards are not 
a protected group, soldiers are apparently not a protected 
group; some are protected groups and get special protection 
under this law.
    Attorney General Holder. But one has to look at the 
history, the unfortunate history, of our Nation. There are 
groups who have been singled out, who have been the objects of 
violence simply because of their sexual orientation, the color 
of their skin, their ethnicity. We have to face and confront 
that reality: that which historically has been a problem for 
the Nation continues to be a problem for this Nation. In the 
absence of action by the Federal Government over the last 11 
years, I think, turns our back on a reality that I think it is 
now time for us to confront.
    Chairman Leahy. Thank you. Senator Sessions had mentioned 
some members of the U.S. Commission on Civil Rights oppose, 
others support it. I would note that we have 300 civil rights 
professionals, civic, educational, and religious groups that 
endorse this; 26 State Attorneys General, former U.S. Attorney 
General Dick Thornburg, virtually every major national law 
enforcement organization, including the Federal Law Enforcement 
Officers Association, the Hispanic American Police Command 
Officers Association, the Hispanic National Law Enforcement 
Association, the International Association of Chiefs of Police, 
the International Brotherhood of Police Officers, the Major 
Cities Chiefs Association, the National Asian Peace Officers 
Association, National Black Police Association, the National 
Center for Women and Policing, the National Coalition of Public 
Safety Officers, and the National District Attorneys 
Association. I'm particularly pleased to see that, having been 
vice president of that association. The National Latino Police 
Officers Association, the National Organization of Black Law 
Enforcement Executives, the Police Executive Research Forum, 
Police Foundation, 44 women's organizations, 64 disability 
rights organizations, and 47 religious faith organizations. We 
have in the audience representatives of the African-American 
Ministers in Action, the International Association of Chiefs of 
Police, the National District Attorneys Association, the 
National Center for Transgender Equality, Third Way, members of 
the U.S. Commission on Civil Rights, and the Human Rights 
Commission. I'll put their letters and statements in the 
record. I just wanted to note that there are a number who----
    [The letters and statements appear as a submission for the 
record.]
    Senator Sessions. Mr. Chairman, I would offer this one, 
too, from the U.S. Commission on Civil rights.
    Chairman Leahy. Of course.
    Senator Sessions. The first letter of which says, ``We urge 
you to vote against the proposed Matthew Shepard Hate Crimes 
Prevention Act. We believe the Act will do little good and a 
great deal of harm.'' Six of the eight members signed it, 
including Gerald Reynolds, the chairman, Abigail Thernstrom, 
the vice chair.
    [The letters appear as a submission for the record.]
    Chairman Leahy. Thank you. I will also put in the record 
another letter from the U.S. Commission on Civil Rights from 
those members who do support it.
    Senator Durbin.
    Senator Durbin. Thank you very much, Mr. Chairman.
    Attorney General Holder, it is a legitimate inquiry by this 
Committee as to whether or not we should expand Federal crimes, 
whether there are adequate criminal statutes at the State and 
local level. I think we should ask that question, and you have 
addressed it from your point of view. When I considered this 
debate, I looked back in history to another debate on anti-
lynching legislation.
    Many of the same arguments--in fact, many of the same 
words--were being used in 1922 to argue against a Federal anti-
lynching law, that of course was focused on the issue of race. 
This expands the concept beyond race to other elements, but 
it's a legitimate inquiry. I happen to come down on the side 
that Federal involvement in this is warranted, but I want to 
address two specific issues, if I can, in a very brief period 
of time.
    The overwhelming correspondence I'm receiving in opposition 
to the hate crimes legislation comes from the religious 
community, primarily from Christian churches who believe that 
this would be an infringement on religious speech. Their 
argument goes along these lines: if a minister stands before 
his congregation and says that he believes that the Bible makes 
it clear that homosexuality is a sinful way of life, and he 
preaches that to his congregation and urges them to not only 
tell their family, but to tell everyone what he believes is the 
revealed Word of God through the Bible, that homosexuality 
should be condemned and is in fact unacceptable, and then 
someone in that minister's congregation acts on that sermon, 
that motivation, either in speech or in conduct, then the 
minister could be held responsible as well under this statute.
    So I'd like to ask you to be as explicit as you could be in 
that particular instance, where religious speech condemns 
homosexuality, urging all of the congregants to join him in 
that belief and to say, even to those homosexuals that they 
meet, that they are sinning in their lifestyle, could you be as 
explicit as you could about whether this statute would inhibit 
that kind of religious speech or hold that religious minister 
liable for conduct?
    Attorney General Holder. Under the facts as you've laid 
them out, Senator Durbin, that minister would not be liable 
under the provisions of this bill. This bill seeks to protect 
people from conduct that is motivated by bias. It has nothing 
to do with regard to speech. The minister who says negative 
things about homosexuality, about gay people, this is a person 
I would not agree with but is not somebody who would be under 
the ambit of this statute.
    The person who actually committed the physical act of 
violence would be the person--assuming that all the 
jurisdictional requirements were met, it is the person who 
commits the actual act of violence who would be the subject of 
this legislation, not the person who is simply expressing an 
opinion.
    Senator Durbin. Yesterday, the Department of Justice 
announced the arrest of a blogger who had called for judges in 
Chicago to be killed because of a recent ruling involving guns, 
and went so far as to publish maps as to how you could find 
their homes, and how they go to work, and that sort of thing.
    So let me take it to the next step. What if that religious 
person I've just referred to, this minister, says it is not 
only against the Word of God, you have an obligation to go out 
and punish those who are guilty of this conduct? Now, has that 
crossed a line where religious speech has now become an 
incitement to violence? Can that minister be held responsible 
under this hate crime statute?
    Attorney General Holder. No. Again, we're looking at people 
who actually commit physical acts of violence, however 
deplorable the speech that you have just described--again, 
speech with which I would vehemently disagree. That is not 
cognizable under the statute.
    Senator Durbin. Now, let me ask you about bodily injury, 
because that is an important element in this as well. What 
about those who are harassed? For instance, homosexuals who are 
harassed by people who believe that their lifestyle is contrary 
to the Word of God, people who would carry signs or call their 
homes? Now, would that conduct, that sort of harassment, be 
covered by this hate crime bill--could those people be 
prosecuted for harassing and creating mental intimidation of 
those who are guilty of what they consider immoral conduct?
    Attorney General Holder. Again, we're looking for acts that 
result in bodily injury, and in the absence of bodily injury, 
that kind of conduct would not be cognizable under the statute.
    Senator Durbin. Thank you very much.
    Senator Feinstein. Thank you, Senator.
    Senator Coburn, you're up next.
    Senator Coburn. Mr. Attorney General, thank you for being 
here. Appreciate it.
    I want to go back and touch on something that Senator Hatch 
asked. Do we actually have good statistics that tell us that 
we're not fulfilling and carrying out the intent of state laws 
that would require us to do this?
    Attorney General Holder. I think that we have certainly 
good statistics that tell us that hate crimes are an ongoing 
problem for this Nation, about 80,000 or so in the past decade. 
The ability of the Federal Government to help State and local 
jurisdictions who want to prosecute these kinds of crimes is 
certainly impacted by the Federal activities requirement that 
the bill would do away with.
    Senator Coburn. Actually, my question is a little 
different. Do we have statistics where the States are failing? 
You mentioned two anecdotal cases in your testimony that I 
heard over the TV before I got here.
    Attorney General Holder. Right.
    Senator Coburn. But do we have statistics that say we have 
these 80,000 crimes, and 5,000 of them, the States did a poor 
job on?
    Attorney General Holder. No, I think we----
    Senator Coburn. Do you have any statistics? In other words, 
I'm trying to find--I have a lot of questions about this bill, 
the least of which is how you determine what motivation is. But 
let me ask it a different way. Which States are regularly or 
systematically failing to enforce their laws punishing crimes 
of violence?
    Attorney General Holder. Well, as I said, as I pointed out 
in my written testimony, there are instances that I think we 
can point to where a State or a local jurisdiction has failed 
to act in a way that I think we would all think that a State or 
locality should. But I don't think, as Senator Hatch asked--I 
don't think that I can say that there is a trend, that there is 
a trend among the States or local jurisdictions in failing to 
go after these kinds of crimes.
    What we're looking for is an ability in those instances--
those rare instances--where there is an inability or an 
unwillingness by State or local jurisdiction to proceed, that 
the Federal Government would be able to stop, would be able to 
fill that gap. That's why this legislation, we think, is so 
necessary. It would not put the Federal Government in the 
position to replace our State and local partners.
    Senator Coburn. Okay. I'll try it a different direction. We 
don't have the statistics? We don't know what the relative 
level, lack of ability of the States? We're assuming that they 
need our help? You've noted anecdotally some of those 
instances, but we don't know. I think we have 45 States that 
have hate crime legislation. Are the States that don't have 
hate crime legislation worse in terms of the prosecution of 
these same similar events that the States that have them?
    Attorney General Holder. I don't know. I'd have to look at 
the statistics, look at the evidence that we have. But what I 
do know is, as the law now exists, there are people who are the 
objects of hate violence who the Federal Government does not 
have an ability to protect if a State decides not to prosecute 
the case. The way the bill is presently--the way the statute is 
now enforced, there's also an inability of the Federal 
Government to help a State or local jurisdiction where we might 
want to because of the requirement for Federal activity.
    Senator Coburn. But we don't know the incidence of that. We 
don't know the incidence of that.
    Attorney General Holder. Again, we can point to specific 
cases.
    Senator Coburn. Yes.
    Attorney General Holder. But I don't have an ability to 
give you----
    Senator Coburn. But I can point to specific cases on lots 
of things that States don't do that we would like for them to 
do different that we don't come and make a special law that we 
can step across that boundary between States and the Federal 
Government to enforce them to do that.
    Attorney General Holder. The difference, I think, though, 
is that there is the historic nature of the kinds of conduct 
that we're talking about, people who are singled out because of 
their race, their religion, under the new provision, their 
sexual orientation, where there is a history of these 
unfortunate kinds of conduct.
    Senator Coburn. I understand that and I agree with that. 
That's why you have 45 States that have passed those laws.
    Let me go back. I asked you during last week's hearing 
whether you viewed the June 1st murder of Army Private William 
Andrew Long, that was targeted by a Muslim because he was a 
U.S. soldier, as a hate crime, and you stated that it is 
potentially a hate crime. You said that DOJ had responsibility 
to prosecute those who killed Private Long.
    Here's what the gentleman that killed Private Long said. He 
said, ``This was an act of retaliation, an act for the sake of 
God, for the sake of Allah, the Lord of all the world, and also 
retaliation on the U.S. military.'' He remains unrepentant. He 
says, ``I do feel I'm not guilty. I don't think it was murder 
because murder is when a person kills another person without 
justified reason.'' How can this not be considered a hate 
crime?
    Attorney General Holder. Well, there's a certain element of 
hate, I suppose, in that. But I think what we're looking for 
here in terms of the expansion of the statute are instances 
where there is an historic basis to see groups of people who 
are singled out for violence perpetrated against them because 
of who they are. I don't know if we have the same historical 
record to say that members of our military have been targeted 
in the same way that people who are African-American, Hispanic, 
people who are Jewish, people who are gay have been targeted 
over the many years.
    Senator Coburn. So what we're willing to do is elevate 
those crimes over the very intended hate crime that this man 
perpetrated upon this soldier, and we're saying they have an 
elevated status?
    Attorney General Holder. No, it's not a question of 
elevating the crime, it is dealing with the reality that we 
confront: 80,000 crimes directed against people who this bill 
would cover. I don't know if we have the same kind of 
statistical information with regard to members of our military.
    Senator Coburn. My time has expired.
    Attorney General Holder. We can certainly say that over the 
course of the last decade there have been 80,000 crimes that 
have been directed against people because of their race, 
religion, national origin, or color.
    Chairman Leahy. Thank you.
    Senator Klobuchar.
    Senator Klobuchar. Thank you very much, Mr. Chairman.
    Thank you, Mr. Attorney General. I remember the first time 
I met you was actually at the introduction of this bill, with 
then-President Clinton. I remember it for a few reasons. One, 
because it was my first official event in Washington. I was a 
young prosecutor and was asked to introduce the President, 
because of cases we had had in our jurisdiction.
    I remember standing out there with him on one side and the 
Attorney General on the other, huge room of people in the East 
Room for this historic announcement. They started playing 
``Hail to the Chief'', I start walking, and I feel this big 
hand on my shoulder and this voice says, ``I know you're going 
to do great out there, but when they play that song I usually 
go first.''
    [Laughter.]
    Senator Klobuchar. That's why I remember it. But I also 
remember it because I had the opportunity to meet the 
investigators in the Matthew Shepard case and to hear their 
stories about how this had changed their lives, investigating 
this case, and what they had thought about gay people before 
and what they thought about them later.
    I thought about the cases that we had had in our own 
jurisdiction before, before the introduction of the bill and 
after, from the case of a young African-American boy who was 
shot by a guy who said he was going to go out and kill someone 
on Martin Luther King Day, and he almost did; the case of a man 
that was severely beaten and got brain damage for speaking 
Spanish because the foreman of that company didn't like that he 
was speaking Spanish; the cases we recently had with a Hindu 
temple that was severely vandalized by young kids, and the case 
of a Korean church that had all kinds of hateful graffiti 
written on it. Those were cases in Minnesota, a place where you 
might not think you'd see these kinds of cases, but we did.
    My question--and I am a supporter of this legislation--is 
just, you talked about how this would be a backstop, that most 
of these cases would continue to be handled by State and local 
jurisdictions. What kind of process will the DOJ go through in 
deciding whether or not to take on a case, a hate crime case, 
as a Federal crime?
    Attorney General Holder. Well, I think that we would do it 
in the typical way that we do now. Our Civil Rights Division 
would look at the matter. There would have to be a 
determination made by the Department at the highest levels that 
the involvement of the Federal Government, the Justice 
Department, would be appropriate. There is a certification 
requirement that the Attorney General, or the Attorney 
General's designee, make the decision that the Federal 
involvement is appropriate.
    So we would be deferring, I think, in a vast majority of 
cases to our State and local partners, but in those instances 
where we thought that Federal involvement was appropriate--and 
again, this would be done at the highest levels of the 
Department--we would like to have the ability to help our State 
and local partners or we would like to have the ability to 
become involved and bring cases on our own.
    Senator Klobuchar. I would also note, I was hearing some of 
my colleagues, that in many areas, gun cases, drug cases, State 
and local and Federal authorities work together and decide 
what's best for the prosecution of a case. So I don't think 
this is that different in that way.
    I also noted that the Chairman mentioned some of the 
organizations that are supporting this bill, including the 
Association of Chiefs of Police, the Major Cities Chiefs, the 
National District Attorneys Association. Does it surprise you 
that these law enforcement groups are supporting this bill?
    Attorney General Holder. No. I think there is pretty 
widespread agreement that there is the need for this 
legislation, that there has been the need for this legislation 
for an extended period of time, that the problem of hate crimes 
is one that is a recurring one. The problem is not going away: 
the number of 80,000 over the course of the last decade, the 
increase in violence focused on people of Hispanic extraction. 
There are clear needs for this kind of legislation and that's 
why I think the support, the widespread support you see for 
this, is not surprising.
    Senator Klobuchar. The bill, as currently written, includes 
a 5-year statute of limitations on hate crime prosecutions. 
What is the Department view of that provision, of the 5-year 
statute of limitations?
    Attorney General Holder. We actually think that--I think 
the House provision is actually a little better. These are 
cases that are not easily put together, and the House version 
that has a 7-year statute of limitations, except for those 
offenses involving death where there would be no statute of 
limitations, is a better way to proceed.
    Senator Klobuchar. So you'd prefer to have the 7-year over 
the 5-year?
    Attorney General Holder. Yes, we would.
    Senator Klobuchar. All right. Thank you very much, Mr. 
Attorney General.
    Chairman Leahy. Thank you.
    Senator Cardin.
    Senator Cardin. Thank you, Mr. Chairman.
    Attorney General Holder, thank you very much for your 
leadership on this issue. I strongly support this legislation.
    When a person has been victimized by a hate crime, it's not 
only the victim who suffers. The entire community is 
diminished. Recent trends are disturbing, and I think it's 
important for the Federal Government to speak to this issue as 
a priority, and the passage of this legislation would do 
exactly that.
    I want to talk a little bit about the relationship between 
the Federal Government and the State, the issue that Senator 
Sessions has raised, and Senator Coburn, and others, and really 
talk about the philosophy of this bill because I think it 
complements the States.
    First, as Senator Klobuchar has said, it is a backstop, so 
there's opportunity for the State to act. If the State acts and 
there's no need for Federal involvement, my expectation is 
there would be no Federal involvement. If the States had the 
capacity to deal with this issue, that's the preferred route.
    The second part of this legislation is uniformity. There 
are States that do not have hate crime statutes. There are 
States that do not include hate generated by a person's sexual 
orientation. There's a need for uniformity, a uniform message 
in our Nation.
    The third, that I don't know if we've talked enough about 
at this hearing, is the financial capacity issue. There are a 
lot of local jurisdictions that are really strapped for funds. 
They don't have the resources to investigate. We all understand 
the capacity of the Federal Government. It's not unlimited, but 
it certainly provides a stronger network for investigation and 
prosecution than a State can dedicate to one particular crime 
or to a situation that needs an extensive investigation.
    In this legislation there is direct help to local 
government. There are programs that provide and authorize 
grants to help State, local, and tribal law enforcement 
officials to manage the high costs of investigating and 
prosecuting hate crimes, so we recognize that by providing 
direct resources. It authorizes the Office of Justice Programs 
to award grants to State, local, and tribal authorities for 
programs that combat hate crimes committed by juveniles, 
including programs to train local law enforcement.
    So, I think we might be losing the focus of this 
legislation which is, yes, to go after those who perpetrate 
hate crimes, but to work with our local governments to backstop 
if they're unable, to have a uniform statute, and to provide 
the resources so that we can bring a coordinated law 
enforcement effort against those who perpetrate hate crimes.
    I want to just give you an opportunity to respond to that, 
whether my reading of this law is correct, that this is not to 
be in conflict with local law enforcement, but to complement 
local law enforcement.
    Attorney General Holder. No, Senator. I think you have it 
exactly right. We don't seek to replace our State and local 
partners. We want to complement them, we want to help them. I 
think that what you've indicated is a good way of looking at 
this. There is a component of this bill, a part of this bill 
that gives direct assistance to our State and local 
counterparts to help them be more effective in prosecuting, in 
dealing with these kinds of crimes.
    This also gives the Federal Government the ability in those 
instances where a State or local jurisdiction doesn't have the 
technological wherewithal to prosecute one of these cases, to 
help us to help them in a way that is now difficult because of 
the requirement that, under the present law, there has to be 
involvement in one of these federally designated activities. 
The new bill would do away with that, those six federally 
designated activities, and would give the Federal Government a 
greater capacity to assist our State and local counterparts.
    So I think that's one way that we should not lose focus. I 
think you're exactly right, we should not lose sight of the 
fact that in a lot of ways this statute would help State and 
local jurisdictions who want to prosecute these kinds of cases.
    Senator Cardin. Well, I think that changing or broadening 
the ability of the Federal Government to respond makes this 
more of a seamless approach between the Federal authorities and 
local authorities, and I appreciate you bringing that to our 
attention. I just would point out, there is no State immune 
from the vulnerability of someone who would commit a hate 
crime, so we do need a national strategy. This is not a 
situation where it is concentrated in one State or one region 
of our country; every State in every region is vulnerable. I 
think we do need the presence of the Federal Government, and I 
thank you for your leadership on this issue.
    Attorney General Holder. Thank you.
    Chairman Leahy. Thank you, Senator Cardin.
    I know the Attorney General has a tight schedule, and he 
worked this in as an accommodation to Senator Sessions' 
request. But before I let him go, I understand that Senator 
Sessions needs a couple of more minutes.
    Senator Sessions. Well, yes. Just a minute. I would just 
note that perhaps the authorization of funding to create tasks 
forces and studies of these kind of crimes would be an 
appropriate role for the Federal Government. But with regard to 
the soldier that Senator Coburn asked you about, he's not 
covered, Mr. Attorney General, by the Act. He's not one of 
these groups, unless he was a homosexual advocating that and 
that caused the attack. So he wouldn't be covered.
    There are lots of other groups, people, decent people, that 
might need additional Federal protection if the Federal 
Government had all the money in the world and all the time to 
investigate this. The Matthew Shepard case, I would just note, 
the individual was prosecuted in Wyoming, two life sentences 
were obtained, and they didn't have a hate crimes act. It was 
the kind of crime that should have been vigorously prosecuted, 
and it was. Perhaps we could consider an option to allow more 
severe sentencing guidelines for people who do just mindless, 
hateful acts. Maybe you could word that in a way that would be 
sufficient.
    I'll ask you again: cite me some cases of significance that 
have not been properly prosecuted in the last 5 years.
    Attorney General Holder. Well, as I said, I think there are 
statutes--there are cases that are noted in my written 
testimony. But here's the way that I would view it.
    Senator Sessions. Well, no, no, no. I think this is 
important. You cited a California case. I understand that 
defendant was convicted of an assault. But every day crimes are 
prosecuted in State court that may not result in a conviction 
which the prosecutor or I would like, but we don't pick that up 
in Federal court with double jeopardy principles and just 
prosecute them again in Federal court. But it doesn't seem to 
me--you say you mentioned three cases. I'll look at those and 
review those. But frankly, that's not a very big number.
    And isn't it true that the vast majority of these crimes 
that you cite as hate crimes, which have dropped, according to 
the statistics, from 1998 to 2007, that the vast majority of 
those are defacement or vandalism, or those kind of crimes?
    Attorney General Holder. The reality is that we have had, 
over the last decade, 80,000 crimes directed against people 
because of their race, color, religion, or national origin. 
That, it seems to me, is a serious problem. The vast majority 
of those cases will be handled by the States and by our local 
partners. What we're looking for is an ability to backstop 
their efforts and come up with a way in which we assist them.
    It seems to me that this is a question, in a lot of ways, 
of conscience. What is it that we consider important? How are 
we going to use Federal resources, the limited Federal 
resources that we have? It seems to me that to protect groups 
of people who are the objects, the subjects of violence simply 
because of who they are, simply because of the color of their 
skin, simply because of their ethnicity, simply because of 
their sexual orientation, their gender, their disability, those 
kinds of crimes are worthy of consideration, examination by the 
Federal Government. We should have an ability to become 
involved in those cases. We don't seek to replace our State and 
local counterparts.
    Senator Sessions. I would just ask you this: why don't we 
make all crimes Federal crimes then?
    Attorney General Holder. There are a substantial number----
    Senator Sessions. I mean, seriously?
    Attorney General Holder. No. And seriously, there are 
substantial numbers of crimes that can be brought, as you know, 
you're a prosecutor, Federal prosecutor, in the Federal courts, 
as well as the State courts and it doesn't happen.
    Senator Sessions. Well, I think you argued your case, and 
I'll listen to it. I'm not persuaded. I want to look at the 
numbers of prosecutions not occurring in an effective way. I 
think that's the fundamental test as to whether or not we 
should go forward with this legislation. In the past, I have 
not concluded it was. I find it odd that Senator's Hatch's 
proposal for years to do a study of this has not been accepted.
    Chairman Leahy. Thank you.
    We're going to--whoops. I guess we did have one other 
Senator. I was about to release you. I would note, we talk 
about the recruiter who was killed. We have very, very specific 
Federal laws for crimes against members of the military and 
veterans and they can be prosecuted very fully. I think that 
most people in the military would much prefer we use those laws 
because they're very, very specific, and they can be used in 
the case of the recruiter who was murdered.
    Senator Schumer.
    Senator Sessions. But not a local police officer, not a 
sheriff, not a deputy.
    Senator Schumer. Thank you, Mr. Chairman.
    I'm not going to keep you long, Mr. Attorney General. I 
appreciate your being here. I appreciate the Chairman holding 
the hearing. I just wanted to add my voice to the many who have 
said that I hope we can move this legislation. I have a 
statement, Mr. Chairman, that I hope will be added into the 
record at this point, to save people time.
    Chairman Leahy. Without objection.
    [The prepared statement of Senator Schumer appears as a 
submission for the record.]
    Senator Schumer. Just one other point. It's hard for me to 
understand, in legislation, whatever your views are on the 
broader issues, legislation that says you cannot physically 
harm somebody because of their race, their religion, their 
ethnicity, or their sexual orientation, it's hard for me to 
understand how anybody can oppose that. To say it's OK--if we 
vote down this legislation, in a certain sense we are saying it 
is OK to physically harm people who you don't like because of 
who they are, and that's a bad thing and I hope we'll move this 
legislation.
    I yield back my time.
    Chairman Leahy. Thank you.
    Attorney General Holder, thank you very much.
    Attorney General Holder. Thank you.
    [Pause].
    Senator Sessions. Mr. Chairman, as they are gathering, I 
think I'm going to need to run to the Armed Services Committee 
which is having its final markup of the Armed Services bill. 
I'll try to get right back as soon as I can. I apologize to the 
panelists if I miss some of your testimony. It's just one of 
those things. I have an amendment, in particular, that I need 
to be at. I've missed most of it already.
    Chairman Leahy. And I know how busy everybody is. That's 
why we've scheduled this during our normal markup time, and I 
appreciate the amount of time, Senator Sessions, you have spent 
here.
    Senator Sessions. And Mr. Chairman, I would offer Senator 
Hatch's statement for the record.
    Chairman Leahy. Of course.
    [The prepared statement of Senator Hatch appears as a 
submission for the record.]
    Chairman Leahy. We will keep the record open until the 
close of business this week for anybody's statement.
    Our next witness is Janet Langhart Cohen.
    Senator Sessions. Maybe she will forgive me if I go to 
Armed Services, since Senator Cohen was----
    Chairman Leahy. She's an accomplished journalist, author, 
playwright. She's on of our Nation's most thoughtful voices on 
race in America. As I indicated earlier, she's a dear friend of 
both my wife and me. She's the author of ``From Rage to Reason: 
My Life in Two Americas'' and the co-author of ``Love in Black 
and White,'' which she wrote with her husband, former 
Republican Senator and Secretary of Defense, William Cohen, 
both books we have and treasure.
    I understand that 2 weeks ago her play, ``Anne and Emmett'' 
was set to debut at the Holocaust Museum. Her husband was 
inside checking out where that was going to be when the shots 
rang out and killed security guard Stephen Johns.
    Mrs. Cohen, we appreciate so much having you here. Please 
go ahead.

       STATEMENT OF JANET LANGHART COHEN, CHEVY CHASE, MD

    Mrs. Cohen. Thank you very much. I must also say, I am 
sorry my friend Senator Ted Kennedy is not here. He is sorely 
missed. He's been a great champion on social justice and civil 
rights.
    I am also sorry that I've been asked to speak about hate 
today, hate in our society. It seems I know a lot about hate. 
I'm almost an expert on it. A trail of hate has followed me my 
entire life. I was born into hate. In 1941, my father, when I 
was an infant, was sent to Europe to fight the Nazis, to fight 
hate, only to return home to fight more hate among his fellow 
citizens: the clan and racism.
    My mother told me, when I was 7 years old we had a cousin 
in our family who had been lynched. She also told me that there 
were people in this country who won't like me because of my 
color, but I must never measure or judge people because of 
something they can't help, and I have kept that promise.
    At 14 years old, when I was deciding what high school I was 
going to go to, since the Supreme Court decision of 1954 said I 
was equal and that I could go to any school I wanted, word came 
up from Money, Mississippi that a young black boy, the same age 
as I, had been brutally murdered for whistling at a white 
woman. That scared our community and it told me what my country 
thought of me as a person of color, because the men who 
brutally murdered Emmett Till got away with it.
    If that wasn't enough, when as an adult, a dear friend and 
mentor was assassinated. Dr. Martin Luther King, Jr. was my 
friend and mentor, and it was hate that murdered him. If you 
think these stories of hate are somewhere in our dark past or 
are a relic of our history, I only have to take you back 2 
weeks ago, when at the Holocaust Museum we had a tragic 
shooting. A white racist went into the Jewish shrine and killed 
a black man, Officer Stephen Tyrone Johns. My husband, as 
Senator Leahy just said, was only 30 feet away from the murder.
    The cruel irony is, my play, Anne and Emmett, a play about 
hate, was to debut in the museum just hours later. Anne and 
Emmett is a one-act play, an imaginary conversation between 
Anne Frank and Emmett Till, two tragic victims of hate whose 
societies allowed them to be murdered. In the play, Anne and 
Emmett explore the commonalities of their disparate oppressors, 
the tactics they used to murder them. These two teens lived in 
societies that allowed them to be murdered and there was no 
justice.
    The cruel irony is that drama within a drama, that this 
white racist would come in, and with a single shot to the heart 
of Officer Johns, bring back memories of Adolph Hitler and Jim 
Crow, it was though they had come back to life.
    I implore this Committee to pass this legislation for those 
who are vulnerable. I am one of them. Those of us who are 
vulnerable because of our race, our color, our national origin, 
our gender identity, our sexual orientation, our disability, 
and our physical challenges. We need to pass legislation that 
will empower our Attorney General, his prosecutors, their State 
and local partners to enforce a law that will take care of all 
of us.
    We need this protection, we deserve this justice. My play 
is a call to action to ask society what I'm asking this 
morning, for us to not be silent bystanders or innocent victims 
watching on, but to do something, to do something to act. I 
feel passing this legislation will protect those of us who need 
it and give us the justice we deserve.
    Thank you very much.
    Chairman Leahy. Thank you very, very much. It's powerful 
testimony and it's testimony that should be heard. I appreciate 
especially the fact that when you say these were not things of 
the distant past, but something we all look at, things that we 
think about with our children and our grandchildren.
    Mrs. Cohen. Thank you.
    Attorney General Holder. Reverend Dr. Mark Achtemeier is an 
associate professor of Systematic Theology at the University of 
Dubuque in Iowa. He's co-authored two books on Christian faith 
and church renewal. He is a former pastor of the Windemere 
Presbyterian Church in Wilmington, North Carolina. Reverend 
Doctor, I'm going to turn the gavel over to Senator Cardin, and 
I'll be back as soon as I can. Thank you.

   STATEMENT OF DR. MARK ACHTEMEIER, ASSOCIATE PROFESSOR OF 
    SYSTEMATIC THEOLOGY, UNIVERSITY OF DUBUQUE THEOLOGICAL 
                     SEMINARY, DUBUQUE, IA

    Dr. Achtemeier. Thank you, Senator Leahy, honorable members 
of the Committee. I come before you as an evangelical Christian 
and an ordained minister in the Presbyterian Church USA to ask 
you to pass The Matthew Shepard Hate Crimes Prevention Act.
    Christians affirm, along with many other faith traditions, 
that every single human being is created in the image of God. 
That means that each person is entitled to the fundamental 
rights and dignity that go with being an image of the Almighty, 
and a member of the one human family.
    In this area, Christian teaching resonates with the dream 
that is America. Our Declaration of Independence states that 
``all men are created equal, endowed by their Creator with 
certain unalienable rights.'' Our forebears in this country 
understood what Christianity also affirms, that people's 
ability to live out their calling requires respect for their 
fundamental rights and freedoms. The protections of a lawful 
society provide us with the secure space necessary to develop 
our full human potential, to grow in love for our neighbors, 
and to offer our gifts for the good of all.
    That space of freedom in which lives can flourish 
disappears when people are subjected to physical attack or live 
in constant fear for their safety. This is one area where the 
church needs the government's help in order to do its work. We 
need you to create for us, and all citizens, that safe space of 
freedom in which we can help people embrace the love and 
goodness that is their calling as children of God.
    As the name on this bill testifies, that safe space has 
been tragically lacking for our lesbian, gay, bisexual, and 
transgendered brothers and sisters. In 2007 alone, 1,265 hate 
crime incidents based on sexual orientation were recorded by 
the FBI. Though we already have laws to protect people from 
violent assaults, the truth is that in areas where particular 
minority groups are widely disapproved, justice sometimes bends 
in response to local prejudices or has too few resources to 
make an effective stand.
    In such cases we need the help of our Federal law 
enforcement system provided by this bill in order to make real 
that America promise of life, liberty, and the pursuit of 
happiness for all our citizens. This bill not only benefits the 
LGBT community, it also promotes religious liberty by expanding 
and updating Federal protection against violent crime committed 
because of a person's religion.
    That is all the more reason why so many religious bodies 
have been eager to support the bill. I have attached to my 
testimony a letter of endorsement signed by my own church, and 
a host of others, representing a broad range of faith 
traditions.
    Now, some have worried that this Act would function to 
outlaw the sincere religious beliefs of Americans who believe 
that homosexuality is contrary to God's will. Let me say that 
if I thought for 1 minute this bill would limit anyone's 
religious faith expression or observance, I wouldn't touch it 
with a 10-foot pole. But that is not what the bill does. 
Section 10 explicitly reaffirms that our religious freedoms are 
fully protected under the Constitution.
    The Matthew Shepard Act targets not thought, not speech, 
but physical assault, and violent acts on another person are 
not a legitimate expression of anyone's religion, Christian or 
otherwise. There is nothing in this Act for law-abiding 
Christians to fear. In fact, we need this bill for the health 
of our churches, our mosques and our synagogues.
    In my own church, good Bible-believing Presbyterians are 
split right down the middle on questions surrounding 
homosexuality, and like many religious bodies we are engaged in 
vigorous debate, working to find our way to God's truth 
together. But we cannot have the debate we need when some 
people fear being assaulted in a dark alley if they're honest 
about what they think and who they are in church. We need the 
protections that the Matthew Shepard Act provides.
    So for the sake of my church's health, for the sake of this 
country's promise to all its citizens, I urge you to do the 
right thing and pass this legislation. Thank you very much.
    Senator Cardin. And thank you very much for your testimony.
    We'll now hear from Gail Heriot, who is a professor of law 
at the University of San Diego, where she teaches torts and 
civil rights law. She is also one of several commissioners on 
the U.S. Commission on Civil Rights. Professor Heriot is also 
former counsel to Senator Hatch of this Committee.

  STATEMENT OF GAIL HERIOT, COMMISSIONER, U.S. COMMISSION ON 
CIVIL RIGHTS, PROFESSOR OF LAW, UNIVERSITY OF CALIFORNIA AT SAN 
                      DIEGO, SAN DIEGO, CA

    Ms. Heriot. Thank you for the opportunity to appear before 
the Senate Committee on the Judiciary. I'm Gail Heriot, a 
member of the U.S. Commission on Civil Rights. Several weeks 
ago, the Commission voted to send a letter to members of the 
Senate leadership opposing Senate bill 909. I am here to 
elaborate on my reasons as an individual Commissioner for 
joining in that letter which was signed by six of the eight 
members of the Commission.
    Americans were horrified by the brutal murders of James 
Byrd and Matthew Shepard a decade ago. More recently, the 
murders of Angie Zapata and Stephen Johns have shocked and 
saddened us all. There ought to be a law, some people have 
said, preferably a Federal one.
    Of course, there is a law. Murder is a serious crime 
everywhere, regardless of its motive, and it has been since the 
advent of our civilization. Indeed, all but a tiny number of 
States have additional special hate crime statutes. To my 
knowledge, no one has actual evidence that State and local 
authorities have been neglecting their duty to enforce the law. 
Matthew Shepard's tormenters are now serving life sentences; 
James Byrd's are on death row awaiting execution, a Colorado 
jury recently convicted Zapata's killer of murder, and the same 
will almost certainly happen to James von Braun, if he lives 
long enough to be prosecuted and is found competent to stand 
trial.
    Unfortunately, tragedies like these bias-inspired murders 
quickly become an opportunity for political grand-standing. The 
proposed Federal hate crimes legislation, however, which is 
being touted as a response to these murders, should not be 
treated as a mere photo opportunity. It's real legislation with 
real-world consequences, and not all of them are good.
    A close examination of its consequences, especially its 
consequences for federalism and double jeopardy protections, is 
therefore in order. All hate crimes, even those that have been 
adopted at the State level, raise significant issues. Why, for 
example, should Matthew Shepard's killers be treated 
differently from Jeffrey Dahmer or Ted Kaczynski? Hate crimes 
are surely horrible, but there are other horrible crimes as 
well.
    What happens if hate crimes statutes are not enforced even-
handedly? Some crime statistics show that an African-American 
is more likely to commit a racially inspired murder of a white 
man or a white woman than the other way around. Should all be 
punished as hate crimes or just those that fit the skinhead 
stereotype?
    Will hate crime statutes really make women and minorities 
feel that the laws take their safety seriously or might they 
have just the opposite effect? Sooner or later, a high-profile 
crime will occur in which some citizens strongly believe ought 
to be prosecuted as a hate crime. Rightly or wrongly, the 
prosecution will decline to prosecute it in that way, or the 
jury will fail to convict on that particular charge. As a 
result, citizens will wind up feeling cheated in some way when 
they might have felt completely vindicated had no hate crime 
statute ever existed.
    Americans may disagree in good faith on whether such laws 
will in the end help or hurt harmony in the community. The 
proposed Federal hate crimes legislation, however, has special 
problems of over-reach, with implications for federalism and 
double jeopardy protections. These problems should cause even 
those who favor State hate crime statutes to question the 
desirability of a Federal statute.
    We at the U.S. Commission on Civil Rights believe that this 
bill will do little good and a great deal of harm. Its most 
important effect will be to allow Federal authorities to re-
prosecute a broad category of defendants who have already been 
acquitted by State juries, as in the Rodney King and Crown 
Heights cases more than a decade ago.
    Due to the exception for prosecutions by dual sovereigns, 
such double prosecutions are technically not violations of the 
Double Jeopardy clause of the U.S. Constitution, but they are 
very much a violation of the spirit that drove the framers of 
the Bill of Rights, who never dreamed that Federal criminal 
jurisdiction would be expanded to the point where an 
astonishing proportion of crimes are now both State and Federal 
offenses.
    We on the Commission regard the broad Federalization of 
crime as a menace to civil liberties. There is no better place 
to draw the line on that process than with a bill that purports 
to protect civil rights. While the title of The Matthew Shepard 
Hate Crimes Prevention Act suggests that it will apply only to 
hate crimes, the actual criminal prohibitions contained in it 
do not require that the defendant be inspired by hatred or ill 
will in order to convict. It is sufficient if he acts ``because 
of'' someone's actual or perceived race, color, religion, 
national origin, gender, sexual orientation, gender identity, 
or disability.
    But consider: rapists are seldom indifferent to the gender 
of their victims. They are virtually always chosen because of 
their gender, among other things. A robber may well steal only 
from the disabled because, in general, the disabled are less 
able to defend themselves. Literally, they are chosen because 
of their disability.
    Or suppose a burglar is surprised when the wife and husband 
return to the home earlier than expected. The burglar shoots 
the husband and kills him, but finding himself unable to shoot 
a woman, turns and runs. Again, literally, the husband was 
killed because of his gender.
    No one can deny the horror of violent crimes inspired by 
hatred of any kind. This is something upon which all decent 
people can agree. But it is precisely in these situations where 
all decent people agree on the need to do something that 
mistakes are often made.
    Passage of this vaguely worded prohibition would be a giant 
step toward the Federalization of all crime. Given the many 
civil liberties issues that it would raise, including the 
routine potential for double jeopardy prosecutions, it is a 
step that the members of the Senate should think twice before 
they take.
    Senator Cardin. Thank you for your testimony.
    We will now hear from Brian Walsh. Brian Walsh is the 
senior legal research fellow at The Heritage Foundation's 
Center for Legal and Judicial Studies. He has worked with the 
Department of Homeland Security and is a former associate with 
the law firm of Kirkland & Ellis. It is a pleasure to have you 
here, Mr. Walsh.

  STATEMENT OF BRIAN W. WALSH, SENIOR LEGAL RESEARCH FELLOW, 
CENTER FOR LEGAL AND JUDICIAL STUDIES, THE HERITAGE FOUNDATION, 
                         WASHINGTON, DC

    Mr. Walsh. Thank you, Senator Cardin. I want to thank 
Chairman Leahy, Ranking Member Sessions, and members of the 
committee for this opportunity to address The Matthew Shepard 
Hate Crimes Prevention Act of 2009, and am focusing on the two 
main criminal provisions in Section 7.
    Along with my Heritage Foundation colleague, former U.S. 
Attorney General Ed Meece, I direct our projects on criminal 
justice reform and over-criminalization, but I speak only on 
behalf of myself here today.
    Over the past few years I have worked with dozens of 
Members of Congress, scores of advocacy organizations, and 
hundreds of individuals across the ideological and political 
spectrums to build support for principled, nonpartisan criminal 
law reform.
    I have written extensively and testified in the House of 
Representatives about problems that are very similar to the 
problems with this bill: gang-crime legislation that over-
federalized crime, ordinary street crime, and would have made 
much ordinary street crime a Federal crime if it had allegedly 
involved gang members.
    Although I recognize that the Members of Congress who 
support the HCPA are well-intentioned and that much effort has 
gone into trying to make its criminal provisions acceptable to 
Federal law enforcement officials, among others, nevertheless, 
the so-called hate crimes provisions are precisely the type of 
criminal laws that we have been working to eliminate. They are 
flatly unconstitutional, almost wholly unwarranted, and highly 
prone to abuse and injustice. Compounding the problem, and as 
is typical of the dynamics that lead to over-criminalization, 
the legislation is wildly popular with the media.
    The hate crimes provisions in Section 7 are 
unconstitutional because the Federal Government is a government 
of limited, ennumerated powers, and the American people never 
granted the Federal Government general or plenary police power 
it could use to control the type of violent crimes covered by 
the offenses.
    The Supreme Court, in 1996 and again in 2000, struck down 
Federal laws governing remarkably similar crimes because 
Congress did not have the power to control them. The court made 
it plain that Congress does not have commerce power to control 
violent, non-economic crimes like those covered by the HCPA's 
two hate crimes offenses.
    The HCPA also suggests that Congress might have a power 
under one of the Civil War Amendments to grant Federal law 
enforcement control over this violent non-economic crime. But 
the Supreme Court reaffirmed in the Morrison case in 2000 that 
the Fourteenth Amendment enforcement power applies only to 
State action, that is government action, whereas the HCPA's 
hate crimes offenses cover violent crime covered by individuals 
who do not act ``under color of law.''
    The constitutional restrictions on Congress's power to 
criminalize are no mere theoretical niceties. Like most 
constitutional restrictions they protect individual rights. The 
case of NFL quarterback Michael Vick provides one recent 
illustration of this problem. For his dog-fighting offenses, 
Vick had to face prosecution by both the Justice Department, as 
well as a State prosecution in Virginia. The burden of 
defending double prosecutions makes it far less likely then an 
accused person will be able to exercise his constitutional 
right to trial by jury.
    If I could quote from the Supreme Court in Miller v. United 
States, 1958, it says, ``However much in a particular case 
insistence upon constitutional standards may appear as a 
technicality that inures to the benefit of a guilty person, the 
history of the criminal law proves that tolerance of short-cut 
methods in law enforcement impairs its enduring 
effectiveness.''
    These offenses are prone to abuse and injustice because the 
language used to define them is overly broad and amorphous. 
First, the offenses do not require a person charged under them 
to have been motivated by hatred toward the victim or toward 
the racial-, gender-, or other group to which the victim 
belonged, or toward any other person.
    These crimes do not require hate, and it is at best 
misleading to call them ``hate crimes.'' I do not believe that 
this is an oversight, for I cite in my written statement 
leading scholars who talk about the elimination of the hate 
motivation from ``bias crimes,'' and I'm happy to provide 
additional information about that scholarship.
    Second, the two offenses attempt to transform ordinary acts 
of violence into Federal crimes if they are committed ``because 
of'' the actual or perceived race, color, sexual orientation, 
disability, religion, national origin, gender, or gender 
identity of any person. In other words, it would be a Federal 
offense even if the defendant acted because of his own, for 
example, gender or gender identity, or if the crime was somehow 
caused by the religion of a third person.
    In sum, the best way I can put it is that the HCPA would 
make every violent crime a Federal crime if it was in some way 
related to someone else's membership in one of the favored 
groups. This is an exceedingly broad scope, and it would lead 
to selective enforcement of the HCPA. The Federal Government 
currently conducts only 1 percent of the arrests made each year 
throughout the Nation and has nowhere near the resources 
necessary to investigate and prosecute every violent crime that 
could be deemed a hate crime under the HCPA.
    Selective enforcement of an exceedingly broad law is 
generally impossible to distinguish from a politically 
motivated prosecution. Such laws undermine our criminal justice 
system by undermining Americans' confidence in the fairness of 
our criminal justice system. The destructive effect is 
compounded, as is illustrated in the debate over this bill, 
when the overly broad law purports to grant greater protections 
against violent crime to some Americans than to others.
    Finally, as has been noted, not only is it the States' job 
to control ordinary crime, the underlying conduct that the HCPA 
would make Federal ``hate crimes'' has always been criminalized 
in all of the 50 States. Further, forty-five States already 
have criminal statutes imposing harsher penalties for crimes 
that are motivated by bias. The benefits and problems resulting 
from those statutes remain to be proven, but the overwhelming 
trend in the States has been to increase the number and scope 
of hate crime statutes.
    In sum, the constitutional flaws alone undermine the 
validity of HCPA's hate crimes offenses, but they are also 
invitations to abuse and unneeded by the States to fulfill 
their core responsibility of controlling local crime.
    Thank you again, Mr. Chairman. I look forward to answering 
the members' questions.
    Senator Cardin. Thank you, Mr. Walsh.
    Our final witness on this panel is Michael Lieberman. 
Michael Lieberman is the Washington counsel for the Anti-
Defamation League, one of the Nation's premier civil rights and 
human rights organizations dedicated to combatting hate, anti-
Semitism, and other forms of bigotry. He is also co-chair of 
the Leadership Conference on Civil Rights' Hate Crime Task 
Force that recently issued a report entitled ``Confronting the 
New Face of Hate: Hate Crimes in America, 2009''.
    Mr. Lieberman.

   STATEMENT OF MICHAEL LIEBERMAN, WASHINGTON COUNSEL, ANTI-
DEFAMATION LEAGUE, AND CO-CHAIR, LEADERSHIP CONFERENCE ON CIVIL 
          RIGHTS' HATE CRIME TASK FORCE WASHINGTON, DC

    Mr. Lieberman. Good morning, Mr. Chairman, Ranking Member 
Sessions. I am Michael Lieberman, the Washington Counsel for 
the Anti-Defamation League and co-chair of the Leadership 
Conference on Civil Rights' Hate Crime Task Force. We really 
appreciate the Committee's attention to this issue today. I am 
pleased to represent ADL and LCCR on this panel.
    We support The Matthew Shepard Hate Crimes Prevention Act, 
and this is notable because it's rare for a coalition of civil 
rights, education, and religious organizations to support 
expanded Federal criminal authority. Groups like the LCCR, the 
NAACP, Human Rights First, and the American Association of 
University Women, all members of the Hate Crimes Coalition, do 
not usually come before you to advocate for expanded Federal 
police powers. It is even more extraordinary that we do so 
today hand in hand with the International Association of Chiefs 
of Police and the National District Attorneys Association, and 
virtually every other major law enforcement organization in the 
country.
    Violent hate crimes have a special impact on the victim and 
their communities. They merit special attention and they 
receive it. For example, the FBI has been the Nation's 
repository for crime statistics since 1930. They publish an 
annual report called ``Crime in the United States''. Every year 
the FBI disaggregates that data and publishes two, exactly two, 
separate reports on crime issues that they believe impact 
Americans dramatically. One of those reports is about law 
enforcement officers killed in the line of duty, obviously a 
matter of great concern, and the other report is about hate 
crimes in America, recognizing their importance and their 
impact.
    In 2007, the most recent data available, the FBI documented 
7,624 hate crimes, as you heard, almost one hate crime every 
hour of every day. Hate crimes against Hispanics have increased 
in each of the past four years and the number of sexual 
orientation hate crimes rose to its highest level in five 
years. We support S. 909 because we see a disturbing prevalence 
of hate violence in America, an inadequate patchwork of State 
hate crime laws and deficiencies in existing Federal criminal 
civil rights laws.
    State and local law enforcement authorities prosecute the 
overwhelming majority of hate crime cases and will continue to 
do so after this legislation is enacted. Federal authority has 
been used very rarely. But those cases are really important and 
demonstrate our Nation's commitment to confront the very worst 
violent hate crimes, like the murder of Yankel Rosenbaum in the 
Crown Heights section of Brooklyn in 1991, and cases that 
involve organized hate groups and neo-Nazi skinheads, and the 
recent successful prosecution of Latino gang members in Los 
Angeles who had hunted African-Americans as a gang-initiation 
rite.
    The legislation before you is narrow, measured, modest, and 
constitutionally sound. It complements and fills gaps in the 
patchwork of existing State laws. Yes, 45 States and the 
District of Columbia have hate crime laws, but only 30 States 
and the District include sexual orientation, only 26 States and 
the District include gender, only 12 States and the District 
include gender identity, and only 30 States and the District 
include disability.
    We know that bigotry cannot be legislated out of existence. 
A new Federal law that finally addresses all victims of hate 
crimes will not eliminate them, but Federal involvement in 
select cases where State and local officials cannot, or will 
not act, and expanded Federal partnerships with State and local 
officials will result in more effective response to these 
crimes. A new LCCR Education Fund report, attached as Appendix 
A, describes a number of very disturbing trends and further 
underscores the need for this legislation.
    The report documents increased hate group recruitment after 
the election of our first African-American President and an 
increase in demonizing, hateful rhetoric against Hispanics, 
immigrants, and those who look like immigrants. The shooting at 
the U.S. Holocaust Memorial Museum earlier this month reminds 
us, as the museum itself does every day, where the spread of 
hate can lead. We urge you to enact this essential legislation 
to equip Federal, State and local law enforcement officials 
with the very best tools to confront this national problem.
    Thank you.
    Senator Cardin. Let me thank each of you for your testimony 
here today. I want to start with Ms. Heriot, if I might. You 
referred to the position of the Commission on Civil Rights, a 
letter sent to the Congress dated April 29, 2009, your letter. 
I'm going to ask that that be included in the record, without 
objection.
    [The letter appears as a submission for the record.]
    Senator Cardin. And then as you've indicated, two members 
of the Commission dissented from that position. They sent us a 
letter dated June 17, 2009. I'm going to ask that that letter 
also be included in the record, without objection.
    [The letter appears as a submission for the record.]
    Senator Cardin. And I want to give you a chance to respond 
to what the two dissenting Commissioners said, because I think 
their statements are pretty profound and I just want to make 
sure that you have a chance to respond to that.
    They basically said that you reached your conclusions 
without any benefit of any research, ``the opposition does not 
reflect a studied position backed by the agency's research.'' 
It goes on to say, ``The Commission's national staff has done 
no fact finding into the extent or damage of hate crimes in 
recent years.''
    Do you care to respond? Was there research done? Did you 
have statistical information? Did you do any recent fact-
finding before reaching your conclusions?
    Ms. Heriot. Quite a lot of research went into this. I'm not 
certain what caused Commissioner Melendez and Yaki to think 
otherwise, but in fact the members of the Commission have made 
a study of hate crimes.
    Senator Cardin. Could you make available to this Committee 
a copy of----
    Ms. Heriot. My testimony is based on some of the research 
that was done.
    Senator Cardin. No. But could you----
    Ms. Heriot. This was research done by me.
    Senator Cardin. Could you make available to the Committee 
the research done by the staff at the U.S. Commission on Civil 
Rights in background for making----
    Ms. Heriot. Yes. As a member of the Commission, I did that 
research. Also, other members of the Commission are quite 
knowledgeable about hate crimes.
    Senator Cardin. Is it documented? Do we have--is there 
material?
    Ms. Heriot. My testimony is the product of that research.
    Senator Cardin. Was your testimony made available to the 
Commission before it acted on----
    Ms. Heriot. It was made available to people who wanted to 
read it.
    Senator Cardin. Before the Commission took action?
    Ms. Heriot. I know that many members of the Commission were 
aware of what I had done, and already knew quite a bit about--
--
    Senator Cardin. Your testimony--your testimony is--I 
believe is--let me take a look at it here. If I understand your 
testimony, in preparation for today's hearing, that was 
prepared then last April--am I getting the dates right here?
    Ms. Heriot. I wrote it back--I wrote--the document that 
that's based on, it's gone through several different kinds of 
versions.
    Senator Cardin. My question to you----
    Ms. Heriot. It actually was written, I think, back in 
November and December, mostly.
    Senator Cardin. If there was a document made available to 
the Commission, if there was research done by the staff of the 
Commission, if you would make that available to the Committee 
we would certainly appreciate it, because it's our 
understanding that there was not staff research done. We 
appreciate your energy as a Commission member. That's 
important. We want to know whether the Commission staff did 
research into----
    Ms. Heriot. The Commission staff doesn't direct the 
Commission, of course. The Commission directs the staff. So 
when members of the Commission do their own research, there's 
nothing wrong with that, Senator. In fact, I would think it's a 
good thing.
    Senator Cardin. No, I understand that. I'd just point out 
that your testimony is dated June 25th, which is today's date.
    Ms. Heriot. Uh-huh. Uh-huh.
    Senator Cardin. We don't have the benefit of the documents 
that were made available by research by either the 
Commissioners or by the staff. But look, you might be unique. I 
do a little bit of my own research too, but I do rely upon our 
staff to get----
    Ms. Heriot. I do a lot of my own research.
    Senator Cardin. I appreciate that.
    Ms. Heriot. I'm a professor of law.
    Senator Cardin. You're a former staffer here.
    Ms. Heriot. Yes. Uh-huh.
    Senator Cardin. I understand that.
    Let me ask you the second point that's made in this letter 
that is very disturbing. It says, ``Unfortunately, the name of 
the U.S. Commission on Civil Rights, once renowned for its 
bipartisanship, scholarship, and presentation of hard facts, 
should be misused to oppose this critical legislation. We 
regret the Agency has come to operate in such a sharply 
ideological manner and look forward to a time when the 
Commission again speaks with a bipartisan voice to advance and 
protect civil rights.''
    Ms. Heriot. And you're asking me to comment on that?
    Senator Cardin. Yes.
    Ms. Heriot. Six members of the Commission agreed on this. I 
think that when six members of the Commission believe that 
legislation pending before Congress is not a good idea, they 
should speak up. There has never been a time that the 
Commission insists on unanimous decisions.
    Senator Cardin. I'd point out that the----
    Ms. Heriot. And just like the Senate does not requite 
unanimity.
    Senator Cardin. I understand that.
    Ms. Heriot. There are times I wish that it did, but it 
doesn't.
    Senator Cardin. The Commission is supposed to be evenly 
divided politically, but instead, two of the independents, one 
was a former Republican, one turned Republican, that joined in 
the opinion. I just point that out because it appears to us 
that it was sharply divided along a partisan basis, which is 
something that we want to avoid with the U.S. Commission on 
Civil Rights. We expect you to try to do what sometimes we're 
unable to do in this Congress, to reach a bipartisan 
conclusion. It appears like----
    Ms. Heriot. And we make every effort to do so.
    Senator Cardin. It appears like you did not succeed in this 
case.
    Ms. Heriot. We did get six out of eight.
    Senator Cardin. Senator Sessions.
    Senator Sessions. Thank you.
    The chairman and vice chairman of the Commission also 
signed?
    Ms. Heriot. That's right.
    Senator Sessions. Well, with regard to this research, this 
Commission has been dealing with these issues for many, many 
years. But I would ask, maybe Mr. Walsh, are you aware of any 
in-depth research, as Senator Hatch has referred to for years 
in the Senate, that has been done to justify a need to pass 
this legislation based on a failure of States to enforce these 
laws in any significant way?
    Mr. Walsh. I am not. My experience is that most of the 
evidence is anecdotal, which, however, is not to discount the 
individual cases.
    Senator Sessions. A lot of the cases they cite, isn't it a 
fact that the defendants were convicted, some given the death 
penalty, some given life without parole, and they're cited in a 
way that suggests that somehow justice didn't get done in those 
cases?
    Mr. Walsh. I think that's correct, and often misleading. 
Even in the Holocaust Museum shooting, already the Justice 
Department has filed a complaint in that case that includes--
not necessarily an indictment, but a complaint in that case--
and it indicates that murder in the first degree, under Federal 
law, 18 USC 1111, will be charged in that case. The mandatory 
minimum penalty for that is death or life imprisonment, and 
that is in addition to the other charge that has been put in 
the complaint.
    Senator Sessions. Professor Heriot--is that?
    Ms. Heriot. Heriot. Yes.
    Senator Sessions. I know you take these issues seriously, I 
know the Commission does.
    Ms. Heriot. I've been working on this issue back from 1998 
when the first hearing was held here. That's when I first 
started----
    Senator Sessions. Well, these are important things and they 
reflect somewhat how we think about the difficult questions of 
race and gender in America. We need to do the right thing about 
it. But you suggest, or I believe you state in your testimony 
that this bill is so vaguely worded that all rape cases could 
be covered by this statute, making a monumental change in 
Federal law. I would say if you made every rape case 
prosecutable under the Federal law, that may be more, except 
for drugs, than any other crime the Federal Government would 
have jurisdiction over, perhaps.
    Ms. Heriot. I'm not sure of that, but----
    Senator Sessions. But anyway, so the question is, do you 
think that's a fair interpretation of the statute?
    Ms. Heriot. It's very interesting. That language, that 
``because of'' language, is so very loose. The first time I saw 
it, which again, was back when I was working for the Committee 
on the Judiciary, I thought, well, a mistake has been made 
here. They probably didn't mean to word it quite that broadly.
    We had a few representatives of the Department of Justice 
come by to talk to the staff, and I mentioned to them that I 
thought this was worded too broadly and it needed to be cleaned 
up a little. Much to my surprise, they were very much against 
changing the language. When I asked them, do you think this 
will cover all rape, I thought they would say no, but they 
didn't. They refused to disclaim the possibility that it would 
cover all rape. They evidently liked that broad 
interpretation--very much.
    Senator Sessions. Well, let's talk about that. Mr. Walsh, 
the Heritage Foundation is a strong believer in the 
Constitution and the classical rights of individuals. Doesn't 
this give, therefore, the Attorney General breathtaking 
authority to pick and choose what crimes they want to 
prosecute, and in the scheme and in the history of the American 
legal experience, isn't it true that criminal statutes, we've 
always endeavored to see that they're clear and cover precisely 
the crime that we're talking about?
    Mr. Walsh. That's correct. I think in many ways this is--
I'll get to the core of the central problem with the statute, 
which is that it invites the selective prosecution. As was 
mentioned numerous times by the testimony by other witnesses, 
including the Attorney General, the Justice Department would 
not weigh in on every case that was a hate crime, it would 
select which cases it would get engaged in. That is the essence 
of an unfair criminal statute.
    Senator Sessions. Well, isn't that contrary to the American 
heritage of law? Basically, I remember a robbery statute is the 
taking of a thing of value from the person of another through 
force, violence, or intimidation. You have to prove each one. 
That's all the robbery statute is, about this long. Now isn't 
this one of the most broad statutes you've ever heard of?
    Mr. Walsh. It's a very broad statute. There are broad 
statutes throughout criminal law, but this one is exceedingly 
broad.
    Senator Sessions. Well, it just gives the Attorney General 
the right to pick and choose his favorite groups of the day, 
maybe the group that supported the Attorney General or the 
President that appointed him. That's the kind of thing we get 
into when you have such a broad problem.
    Mr. Chairman, I also would ask each of these panel members, 
if you can cite a specific case where injustice was done in the 
last half-dozen years, I'd like to see it, because I do think 
before we do this kind of unusual legal action, that we have a 
basis for it based in research and documentation. Thank you.
    Senator Cardin. Thank you, Senator Sessions.
    I've just got to be perfectly open about this. As I 
listened to Mrs. Heriot's examples, it flashes back to the days 
when we were trying to pass the Fair Housing Act. I've been in 
a legislative body for a long time, back to the 1960s, and I 
heard the same arguments being made to try to block just about 
every civil rights bill with these examples.
    This legislation is an effort to try to fill in the gaps, 
fill in the gaps at the national level. We have a hate crimes 
statute, but it is limited to where the crime can be committed 
and it doesn't cover those who are victims because of their 
sexual orientation or disability. I do think Federal crimes 
should be limited to matters of national importance. I don't 
know of a more important subject than the principles of our 
Nation and embracing diversity. The trends today are 
concerning.
    So I do think this is a fundamental issue, but I have a 
question for each one of the panelists, and it's a pretty 
simple one, following on Senator Schumer's comments about 
trying to understand what happens when Congress votes on this 
issue. I guess my point is, what is the message to the American 
people if the U.S. Congress either passes this enhanced hate 
crimes statute or fails to pass this hate crimes statute? Mrs. 
Cohen.
    Mrs. Cohen. Well, it's a very interesting question. Not 
being a lawyer but a lay person, I find that--having my husband 
serve on this Committee and in this body, I find that you need 
to deliberate and debate. And, of course when you do that, many 
times the weapon of delay comes, and that means denial. I have 
seen cases in my own life, growing up in a black ghetto, when 
we'd see the police it was a sign of being patrolled and not 
protected. But I also know that if you give this law to this 
Attorney General, it will be used wisely because of his 
brilliance and his integrity, and because of his history.
    As you well know, Senator Sessions, we needed Federal laws 
and Federal troops to go in to have this Attorney General's 
sister-in-law integrate the University of Alabama. So when I 
think of police, I have mixed emotions. And I think of what you 
said, Michael Lieberman, about, it is rare for people of our 
sensibilities to ask for law enforcement, to have the Federal 
Government intervene. But you are charged to protect us and no 
other help do we know. We are trusting that you will make the 
laws of this land to govern all of the people equally and 
justly. I hope that answers your question.
    Senator Cardin. Thank you.
    Dr. Achtemeier.
    Dr. Achtemeier. When I received the invitation to be here 
today, I naturally spoke with friends and family out in Iowa 
about the issue. These are people from across the political 
spectrum, conservatives and liberals, old and young. The 
universal response I got was: how could you not be for this 
legislation? There was a clear perception of a problem. No, we 
don't have statistical reports, but there's an awful lot in the 
headlines. Ordinary Iowans and relatives from around the 
country have a distinct sense that certain groups in our 
society are in more jeopardy than others and require particular 
protections.
    So I think if the Senate failed to pass this, the attitudes 
back in Iowa, at least, would be mute astonishment, wondering 
how the government can abandon these most vulnerable members of 
our society. I think that would be seen as a failure of what 
the government is supposed to do.
    Senator Cardin. Mrs. Heriot.
    Ms. Heriot. I'm afraid that if this legislation is passed, 
the ultimate message is going to be that making a political 
statement is more important than passing well-drafted and well-
thought out legislation. If the legislation is not passed, what 
the message will be will depend upon what members of the Senate 
make the message. That's what leadership is all about, 
explaining why a particular item of legislation should be 
rejected under the circumstances.
    It's easy for people at home not really to know a lot about 
the legislation. They hear: ``well, it's about hate crimes. I'm 
against hate crimes.'' Well, all decent people are against hate 
crimes. But if you tell them about the double jeopardy issue, 
about various other issues that are connected to this message, 
then they'll get a very different message and I think that is 
very much the responsibility of all members of the Senate, all 
members of the House, and of the President of the United 
States.
    Now, Mrs. Cohen just pointed out a moment ago something 
very important, and that is our present Attorney General, she 
believes, is a very talented individual, and I have certainly 
no reason to disagree with that. But we don't know who the 
Attorney General is going to be next, or the next one after 
that, or the one 30 attorney generals down the road. That's why 
legislation is important. It has to be well-drafted, well-
thought out, and this has not been.
    Senator Cardin. I was just trying to get your response to, 
whether it passes or not--we try not to do rebuttal, but I know 
sometimes it's difficult.
    Ms. Heriot. It was on point, I'm afraid.
    Senator Cardin. I'm tempted to ask you whether you would 
favor the repeal of our current hate crimes. I guess the answer 
would probably be yes, you don't think the Federal Government 
should have a law here.
    Dr. Walsh? Mister.
    Mr. Walsh. Mister, thank you. I think the--thanks for the 
promotion there.
    [Laughter.]
    Mr. Walsh. I think the message would be that the U.S. 
Congress takes the Constitution very seriously, and it uses the 
criminal law very wisely--the same way that we have criticized 
gang-crime legislation because it would over-criminalize in 
that context. I think the American people, if they read this 
bill and they understood the rule of law and they believe we 
should adhere to the rule of law, they would understand that 
this is a measure that undermines that.
    I, too, believe that Attorney General Holder will probably 
apply this in a proper manner, however, he's not the one who 
makes the initial decision in individual cases. The people who 
make the decisions in individual cases are individual Federal 
prosecutors.
    Second, is that we should not be trusting in Mr. Holder, we 
should be trusting in the rule of law. That's what a well-
tailored, narrow law does for us, one that's constitutional. It 
gives us the ability to look to the law itself and not to an 
individual and rely on them to make sure that they apply it 
wisely. Again, coming back to the root concern, I think if 
Americans understood the law they'd be glad to know that 
prosecutors will not be given a broad mandate to Federalize 
crimes and decide that if they are unjustly accused of a crime 
of violence, that the Feds might jump in and decide to 
prosecute it as well.
    Senator Cardin. Mr. Lieberman, what is the message to the 
American people on this?
    Mr. Lieberman. Senator Cardin, I think the message when 
this bill is enacted into law is that these crimes matter very 
much to the U.S. Government, that every hate crime victim 
should be protected, every hate crime victim matters. These are 
selective prosecutions. They are bias-motivated crimes, they 
are violent conduct. They cause bodily injury. They're cases 
where State and locals can't, or won't. I think orders of 
magnitude are very important here.
    Since 1991, there have been 129,000 hate crimes reported to 
the FBI and less than 170 indictments under the current 
statute, 18 USC 245, the parallel to what will be 18 USC 249. 
In no year since 1968 have there ever been more than 10 
indictments under the existing statute. That is very selective, 
but as I mentioned in my testimony, very, very important cases 
that send a dramatic message to the victims and to the 
community that these crimes will be taken seriously by the U.S. 
Government.
    Senator Cardin. Thank you.
    Senator Sessions.
    Senator Sessions. Thank you.
    Well, this is a good discussion. I think it's important. 
I've been giving a lot of thought recently to the great 
heritage of law that this Nation has been blessed to have. When 
you travel around the world like I have, six times to Iraq, six 
times to Afghanistan, the West Bank, Pakistan, places that--and 
even countries that do much better, still don't have anything 
like the magnificent rule of law that we have. It protects 
everybody. A poor person can expect, and must be given, their 
day in court.
    But we are a Nation of laws and not of men. That's a 
fundamental principle of this Republic, and I think it's a good 
principle. I don't think that we've ever thought that it's wise 
to give power to the Attorney General to pick and choose crimes 
to an extraordinary degree. If they're not being prosecuted, if 
legitimate cases aren't being made, then I can understand that. 
So, it puts me in a difficult position.
    I don't want to have--I thought I heard Senator Schumer say 
basically, if you don't vote for this bill you're for hate. I 
don't think he meant that. Hopefully he didn't. But it's kind 
of what our--so I don't think that's accurate. I'm not going to 
be put in that box. I'm not going to be intimidated. We're 
going to think this thing through.
    If you can show that there is statistical research that 
indicates that a serious problem exists in this country, I'm 
willing to talk about it. It did exist, Ms. Cohen, in the South 
throughout much of our history and we have that Civil Rights 
Act that allowed that to happen. It was justified, as I said in 
my opening statement, because the facts justified that.
    You know the discrimination; African-Americans couldn't go 
to certain schools, they couldn't use certain restrooms, there 
were other kinds of routine biases against them. Out of that 
was why this bill passed. But today I am not sure women or 
people with different sexual orientations face that kind of 
discrimination. I just don't see it. So I believe that if they 
are harassed or discriminated against unfairly, we probably 
have the laws--I believe we have the laws to fix it. So what 
the question would be, is this one necessary? I'm not sure that 
it is. Matter of fact, I don't think that it is, based on what 
I know.
    If you take these examples of crimes that I asked the 
Attorney General about, I thought about one. Let me ask you, 
Ms. Heriot. An individual, perhaps, let's say hypothetically, 
is angry that the husband left his sister alone with a bunch of 
children and he takes up a homosexual lifestyle which he thinks 
is bad and he attacks this former brother-in-law. Would that--
--
    Ms. Heriot. I'm getting confused over the theory of 
relativity here.
    Senator Sessions. Well, the question would be, would that 
cover the circumstances?
    Ms. Heriot. You're going to have to run the facts by me 
again there.
    Senator Sessions. Okay. The facts would be that, let's say 
that a man left his wife and children.
    Ms. Heriot. Okay.
    Senator Sessions. And adopted a homosexual lifestyle.
    Ms. Heriot. Okay.
    Senator Sessions. And the brother of the wife, former wife, 
doesn't like this and attacks the man and states that he didn't 
like his lifestyle when he attacked him. Would that meet the 
basic standards of this case?
    Ms. Heriot. That's actually a good, good hypothetical. I 
like that hypothetical. The answer is, I think probably a 
Federal prosecutor could look at that case and say, yes, it's 
covered.
    Senator Sessions. Now, if the man ran off with another 
woman and he had the same anger in his system and he has a 
confrontation and attacks him, would that cover it?
    Ms. Heriot. Run it by me again.
    Senator Sessions. If the husband ran off with another 
woman, leaving his wife and children, and his brother, to 
avenge this, attacks him, would that meet the same standards? 
Would that be a Federal crime, potentially, also?
    Ms. Heriot. If you really, really wanted to make an 
argument for it, yes, you can.
    Senator Sessions. Mr. Walsh, I see you nodding. Do you 
agree with that?
    Mr. Walsh. Yes, I think it would. I think it's broad enough 
to encompass anything that is ``because of'' somebody's gender 
or sexual orientation.
    Ms. Heriot. Yes. He wouldn't have gone after him had he not 
been a man. That's the trouble with this whole issue of 
causation, this ``because of''. I mean, causation issues have 
been giving philosophers problems since Aristotle. It's hard. 
What do we mean when we say something happens because of 
something else? Well, usually things have lots of causes. 
Almost always, every event has a lot of causes.
    Crimes are often motivated by very complex emotions and 
very complex needs and such. It's not very often that you run 
across the case of the absolutely pure hate crime, someone 
decides to pick someone else at random from the population for 
absolutely no reason other than that person's race, or sex, or 
handicap. It's very difficult to come up with real cases that 
are really motivated that way.
    What happens is, race and sex and disability and sexual 
orientation get put into the mix. The question is, how much of 
the result has to be connected or how closely must that 
motivation be connected to race, sex, et cetera? Is this part 
of it or does it have to be the primary motivation? One thing 
that could be done here that might be useful is amending this 
bill so that it requires that the motivation be the primary 
motivation. Now, that's something that the Department of 
Justice, back when I was working for the Judiciary Committee, 
didn't want, but I think it would improve the bill.
    Mr. Walsh. Can I mention another amendment? This bill would 
be much different if it was limited to those acts of bodily 
injury that were under color of law, and really we've been 
talking about de jure, legalized discrimination, racial hatred, 
et cetera. That is really what the Fourteenth Amendment, 
Thirteenth Amendment, Fifteenth Amendment were put in place to 
address. So we have a very clear response when there has been 
an official act of racial segregation in this Nation, it was 
the Civil War amendments.
    If this statute clearly flowed out of the Civil War 
amendments, in other words, it derived its power from them, if 
it was under law where if it was shown that there was a 
widespread, systematic disregard of a State's own laws on hate 
crimes or a State's own law on violence, if they weren't being 
enforced against when the acts were committed against gays or 
committed against any individual, anything that shows that 
there's a de jure, tacit approval, then this would be a 
different law altogether and I think that that would make a lot 
more sense because that type of discrimination is something 
that we've made clear in the Civil War amendments, and since 
then in the Civil Rights Acts as well, that that is entirely 
off the board and something that the Federal Government can get 
involved in.
    Senator Sessions. Thank you, Mr. Chairman. This is a good 
discussion, a good panel. I appreciate it very much. I think I 
understand the feelings that are here and we'll have to wrestle 
with them. I've got a number of statements from other members 
that I'd offer for the record, Mr. Chairman, and I appreciate 
the opportunity.
    [The prepared statements appear as a submission for the 
record.]
    Senator Cardin. I would just make an observation. I 
couldn't disagree more with Professor Heriot's observations of 
what's happening in the real world. I think Mr. Lieberman's 
number of, I think it was 80,000 episodes in the last decade 
reported indicates that we have a significant problem of people 
being targeted in America for violence solely because of their 
race, their religion, their national origin, their sexual 
orientation, their disability. This is a growing problem.
    Look, the message--I'm going to answer my own question. The 
message when we pass this--and I certainly hope that we will 
pass this--is that America has made a priority protecting 
people from violence because of diversity, that diversity is 
embraced in America as our strength. I really do look forward 
to the day--look, the number of prosecutions are going to be 
small. Mr. Lieberman's point is well taken. We don't expect 
there to be 80,000 prosecutions at the Federal level, we expect 
it to be a very small number.
    But it's going to be meaningful and it's going to have a 
major impact on the attitude in America. We've seen attitude 
change in this country. We've seen when it used to be 
acceptable to accept racial slurs in cocktail conversations. 
That's no longer the case, I hope, in America today. Attitudes 
change. The Federal Government can play a critical role in 
bringing about that change, and this is one more chapter in 
achieving that goal.
    I really do hope that after we pass this statute, that 
there will come a time where we say, you know, this really 
isn't needed anymore in America, that we really have achieved a 
circumstance where violence is not targeted against a person 
because of their diversity. I hope we all live long enough to 
see that day. We're not there today. We need help. That's why 
many of us believe this is a fundamental civil rights act that 
needs to be passed, and we'll do everything we can to see it 
happen. I certainly appreciate Senator Sessions' points, and 
I'm sure we will continue this dialog.
    If there is nothing further, here today is a statement for 
the record representing the International Association of Chiefs 
of Police, from Sergeant Kip Malcolm, Officer Brian Bennett, 
Lieutenant Crystal Nosil. If not, the record will remain open 
for additional questions that may be presented to our 
witnesses, and the hearing will stand adjourned.
    [Whereupon, at 12:20 p.m. the Committee was adjourned.]
    [Questions and answers and submissions for the record 
follow.]

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