[Senate Hearing 111-915]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 111-915



                               before the


                                 of the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE


                             SECOND SESSION


                           SEPTEMBER 29, 2010


                          Serial No. J-111-112


         Printed for the use of the Committee on the Judiciary

                  PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin                 JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
ARLEN SPECTER, Pennsylvania          JON KYL, Arizona
CHARLES E. SCHUMER, New York         LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois          JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland         TOM COBURN, Oklahoma
AL FRANKEN, Minnesota
            Bruce A. Cohen, Chief Counsel and Staff Director
               Matthew S. Miner, Republican Chief Counsel

                    Subcommittee on Crime and Drugs

                 ARLEN SPECTER, Pennsylvania, Chairman
HERB KOHL, Wisconsin                 LINDSEY GRAHAM, South Carolina
DIANNE FEINSTEIN, California         ORRIN G. HATCH, Utah
RICHARD J. DURBIN, Illinois          TOM COBURN, Oklahoma
               Hannibal Kemerer, Democratic Chief Counsel
                  Walt Kuhn, Republican Chief Counsel

                            C O N T E N T S




Cardin, Hon. Benjamin L., a U.S. Senator from the State of 
  Maryland.......................................................     1
    prepared statement...........................................    42


Johnson, Hon. Eddie Bernice, a Representative in Congress from 
  the State of Texas.............................................     3
Levin, Brian H., Professor, California State University, San 
  Bernardino, San Bernardino, California.........................     6
Luna, Erik, Professor of Law, Washington and Lee University 
  School of Law, Lexington, Virginia.............................     9
Manning-Moon, Simone, Decatur, Georgia...........................     7
Muhlhausen, David B., Research Fellow in Empirical Policy 
  Analysis, Center for Data Analysis, The Heritage Foundation, 
  Washington, DC.................................................    14
Wierzbicki, Richard, Commander, Hate Crimes/Anti-Bias Task Force, 
  Broward County Sheriff's Office, Fort Lauderdale, Florida......    12

                         QUESTIONS AND ANSWERS

Responses of Brian Levin to questions submitted by Senator Coburn    24
Responses of Erik Luna to questions submitted by Senator Coburn..    27
Responses of David Muhlhausen to questions submitted by Senator 
  Coburn.........................................................    36
Responses of Richard Wierzbicki to questions submitted by 
  Senators Coburn and Klobuchar..................................    38

                       SUBMISSIONS FOR THE RECORD

Collins, Hon. Susan M., a U.S. Senator from the State of Maine, 
  prepared statement.............................................    46
Hannah Rufus, San Diego, California, letter......................    47
Johnson, Hon. Eddie Bernice, a Representative in Congress from 
  the State of Texas, statement..................................    49
Lamberti, Al, Sheriff, Broward County, Florida, statement........    51
Levin, Brian H., Professor, California State University, San 
  Bernardino, San Bernardino, California, statement and 
  attachments....................................................    54
Luna, Erik, Professor of Law, Washington and Lee University 
  School of Law, Lexington, Virginia, statement..................   131
Manning-Moon, Simone, Decatur, Georgia, statement................   146
Miscellaneous Coalition letter to Senator Cardin, joint letter...   149
Muhlhausen, David B., Research Fellow in Empirical Policy 
  Analysis, Center for Data Analysis, The Heritage Foundation, 
  Washington, DC, statement......................................   156
National Coalition for the Homeless, Washington, DC, statement 
  and attachments 1-5............................................   167
National Law Center on Homelessness & Poverty, Washington, DC, 
  statement......................................................   230
O'Malley, Martin, Governor, State of Maryland, Annapolis, 
  Maryland, statement............................................   233
Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the 
  State of Florida, prepared statement...........................   235
Statewide Legislation Status of hate Crimes Against the Homeless, 
  chart..........................................................   236
Wierzbicki, Richard, Commander, Hate Crimes/Anti-Bias Task Force, 
  Broward County Sheriff's Office, Fort Lauderdale, Florida......   237


Submissions for the record not printed due to voluminous nature, 
  previously printed by an agency of the Federal Government, or 
  other criteria determined by the Committee, list:
    National Coalition for the Homeless, attachment 6,
    Reports--Hate Crimes Against the Homeless: America's Growing 
      Tide of Violence 2009



                     WEDNESDAY, SEPTEMBER 29, 2010

                                       U.S. Senate,
                           Subcommittee on Crime and Drugs,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Subcommittee met, pursuant to notice, at 10:01 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L. 
Cardin, presiding.
    Present: Senator Cardin.

                   FROM THE STATE OF MARYLAND

    Senator Cardin. Good morning, everyone. The Crime 
Subcommittee of the Senate Judiciary Committee will come to 
    I first want to thank Senator Specter, the Chairman of the 
Crime Subcommittee, for allowing me to conduct today's 
Subcommittee hearing. This is a subject that has been a 
priority for our Committee, and I appreciate Senator Specter's 
    When I hear the horrific stories about murders, assaults, 
and rapes committed against our Nation's homeless, I ask 
myself: Is this really America? When I hear the story of Norris 
Gaynor being beaten to death by baseball bats while sleeping on 
a park bench, I ask myself: Where is all this violence coming 
    When I heard about John McGraham being doused with gasoline 
and set ablaze, I was shocked and horrified that this could 
happen to a fellow human being and just wondered where we are 
    Now, these are just two examples of a larger problem. Last 
fall, I introduced the Hate Crimes Against the Homeless 
Statistics Act with Senator Collins in an effort to get uniform 
data collection on this type of violence. My bill would only 
require data collection on bias-motivated crimes against the 
homeless. What that means is I want the Federal Government to 
track how many crimes are being committed against the homeless 
just because they are homeless.
    Currently, the Hate Crime Statistics Act of 1990 requires 
the Department of Justice to collect data information from law 
enforcement agencies of crimes that manifest evidence of 
prejudiced based upon race, religion, sexual orientation, 
ethnicity, disability, gender, or gender identity. However, 
that was not always the case. When the law was first passed in 
1990, the FBI was only required to collect data about crimes 
based upon race, religion, sexual orientation, and ethnicity. 
Then in 1994, Congress added disability, and just recently the 
Congress amended the statute again requiring data collections 
on gender and gender identity.
    Now, there are some individuals that believe that data 
collection is unnecessary. I disagree. I think the best way to 
develop a strategy to deal with a problem is to make sure that 
you have accurate information in order to be able to act.
    The National Coalition on Homeless has been documenting 
these bias-motivated acts of violence for over 11 years. 
According to their numbers, bias-motivated crimes against the 
homeless are pervasive and growing. Just last year, 43 people 
died, making 2009 the deadliest year for attacks on homeless 
    Now, one might think that 43 is not such a great number. 
But when you compare that number to the information that we 
have on other acts under the Hate Crimes, that number is much, 
much larger than the others that have suffered death as a 
result of hate crime activities.
    According to the FBI hate crime statistics, seven homicides 
were classified as hate crimes in 2008. In that same year, 27 
fatal attacks occurred on homeless persons, according to the 
National Coalition for the Homeless. The National Coalition for 
the Homeless has done an amazing job trying to track and 
document all those crimes from the greater public. But they are 
not law enforcement. We need to have consistent information 
that is collected by the FBI so that we know the extent of the 
problem relative to other areas of concern.
    According to the Department of Housing and Urban 
Development's latest report to Congress, approximately 640,000 
persons were homeless on any given night in 2009, and roughly 
1.5 million people, or one out of every 200 Americans, spent at 
least one night in a shelter during 2009. Veterans account for 
about 20 percent of our homeless population. Families displaced 
because of domestic violence make up 28 percent of our homeless 
population. But the fastest-growing number of people who are 
homeless by demographics are families with children. It is our 
responsibility to strengthen programs to reduce the number of 
homeless in all categories here in America.
    As we see the number of families increase, we also see the 
number of available shelters decrease. For example, in 
Baltimore County, we have seen a rise in homeless families, but 
a lack of space to provide them with safe housing. According to 
recent statistics, shelter space increased 25 percent last 
year. But according to the Maryland Department of Social 
Services, the number of homeless parents seeking emergency 
housing has more than doubled in the past 5 years.
    So here is what we do know. We know that violence is 
occurring against this population. We know that the unhoused 
population in America is growing. One can make an educated 
guess that these two facts may lead to more victims. But I do 
not want to guess. I want to get the facts. That is why I 
believe Congress should enact the law to allow us to get the 
    This Nation was founded on the principles that Government 
must seek a more perfect union for the people and the 
Government must provide for the general welfare so that every 
man and woman can live in security and liberty. America's 
homeless are mothers and fathers, brothers and sisters, 
veterans and workers.
    Robert Kennedy once said if you make some contribution to 
someone else to improve their life, that is what you should be 
doing. What will history say about us on this issue? Did we the 
people help to promote the general welfare of the homeless? 
What steps did we take to stop the violence?
    America's homeless deserve the same respect and dignity 
that we share sitting here today. I look forward to the 
testimony of our witnesses as we develop a record in this 
Committee to take action to protect America's vulnerable.
    With that, let me first turn to my colleague, 
Representative Eddie Bernice Johnson. I had the opportunity to 
serve with her when I was in the House of Representatives. She 
is a passionate leader on issues of people who need our help. 
She has been the voice of many people who otherwise would not 
be heard in the chambers of the Congress. It is an honor to 
have her before our Committee.


    Representative Johnson. Thank you very much, Senator 
Cardin, and thank you for inviting me to testify on this 
important issue.
    Each year there are hundreds of individuals who are targets 
of violent crime based solely on their appearance, means, or 
lifestyle. Each and every violent crime is traumatic. However, 
hate crimes are not only meant to physically harm the victim, 
but degrade all individuals of similar identity. They instill a 
pervasive sense of fear within that community.
    Over the past few years, there has been a great deal of 
attention given to enhanced enforcement of hate crimes. 
Unfortunately, there has been a significant omission during 
this debate. One of the most frequent but least discussed 
categories of hate crimes are those which target the homeless.
    Between 1999 and 2010, there were more than 1,000 bias-
motivated attacks committed against the homeless; 291 of these 
attacks were homicides. That is more than twice the number of 
homicides committed in all other hate group categories 
    The thread that holds all these crimes together is the 
sheer violence and disregard for human life. In April of last 
year, a homeless woman confined to a wheelchair was repeatedly 
raped in Seattle, Washington. The man who raped her told her, 
``I can rape you and get away with it...You're homeless? No one 
cares about you.''
    Last year in my home State of Texas, a 41-year-old homeless 
man was sitting on a bench near the University of Texas at El 
Paso. Four unknown males assaulted him and lit him on fire. He 
survived but lives with serious burns. This was one of six non-
fatal attacks that involved setting a homeless individual on 
fire. These six attacks occurred in 2009 alone.
    In 2009, there were 43 homeless men and women who were 
murdered because they were homeless; 90 percent of those deaths 
were caused by stabbing, blunt force, or strangulation.
    A misconception is that these attacks happen to belligerent 
bums. However, many of these individuals were sought out by 
their attackers. Some victims never even spoke to their 
attacker before they were killed.
    In the 110th Congress, I introduced the Hate Crimes Against 
the Homeless Statistics Act. This bill was reintroduced in this 
Congress along with a Senate companion bill which is sponsored 
by Senators Cardin and Collins. The sole purpose of this bill 
is to direct the FBI to add the category of homelessness to 
their hate crimes statistics.
    The National Coalition for the Homeless has done an 
outstanding job collecting data on homeless hate crimes over 
the past 10 years. However, Federal recognition is essential in 
order to understand and curb this type of violence.
    The Federal Government has fallen behind the States on this 
issue. Currently, there are four States who already recognize 
homelessness as a category of hate crime. Several more have 
legislation pending, and this is not just in Democrat 
politically run States. Florida had a Republican-elected 
Governor and a Republican legislature at time their homeless 
hate crimes bill was signed into law.
    If Congress continues to not take a stance on this issue, 
we send the message that we are willing to look the other way. 
Treating homeless individuals rudely or inhumanely is seen as 
acceptable by far too many Americans. It is the one group where 
it is still acceptable in most circles to disparage. How do we 
end this if even Congress is unwilling to treat these 
individuals equally?
    Senator Cardin, I thank you for being a true leader on this 
issue and for allowing me to testify in front of this Committee 
    [The prepared statement of Ms. Johnson appear as a 
submission for the record.]
    Senator Cardin. Well, Congresswoman Johnson, thank you for 
your testimony, but more importantly, thank you for your 
leadership on this issue in the Congress, and I am glad you 
pointed out that this is bipartisan legislation.
    We do have a letter that I am going to ask unanimous 
consent to be made part of the record by Congresswoman Ros-
Lehtinen in support of this legislation, and from Senator 
Collins, who cosponsored the bill with me, we have a letter 
from Senator Collins in support of the legislation that would 
require the FBI to collect information concerning attacks 
against the homeless. Without objection, those two letters will 
be made part of the record.
    [The letters appear as a submission for the record.]
    Senator Cardin. I want to share with you a blurb that I 
found in a popular men's magazine that is absolutely appalling. 
It reads, ``Hunt the homeless. Kill one for fun. We are 87 
percent sure it is legal.''
    Now, has society become so desensitized to the 
glorification of violence that an ad like that could appear in 
a magazine in our country? To me this is just shocking that 
something like this could happen in the United States.
    You mentioned what happened in Texas. It was not one 
episode; it was several episodes. The same thing has happened 
in Maryland. I would hope that we were beyond this, but until 
we get the information as to whether ads like this are having 
impact, it is difficult, I think, for us to develop a strategy 
to deal with it. That is the reason I introduced the 
legislation. I note your concerns. I think we need to develop a 
workable strategy to protect all our vulnerable citizens, and 
the homeless, just because they are homeless, are being 
victimized, and that needs to stop in America.
    Thank you for your testimony. I appreciate it very much and 
look forward to working with you.
    Representative Johnson. Thank you.
    Senator Cardin. We will now turn to our second panel, and I 
will introduce them in the order in which they will be 
speaking, and you all can come forward and take your seats.
    First we have Professor Brian Levin, an associate professor 
of criminal justice and director of the Center for the Study of 
Hate and Extremism at California State University, San 
Bernardino, where he specializes in the analysis of hate 
crimes, domestic and international terrorism, and related legal 
issues. He is a leading academic expert on violence against the 
homeless and has contributed to the National Coalition for the 
Homeless 2010 report entitled, ``Hate Crimes Against the 
Homeless: America's Growing Tide of Violence.''
    We have Richard Wierzbicki, who is the commander in the 
Department of Law Enforcement at the Broward County Sheriff's 
Department in Fort Lauderdale, Florida. Since September 2008, 
he has headed the Broward Sheriff's Hate Crimes Task Force. He 
testified this year in front of the Florida House and Senate 
subcommittees in favor of adding the homeless to the Florida's 
hate crimes statute.
    We have Simone Manning-Moon, who is the sister of Norris 
Gaynor, who died at the age of 45 after he was brutally 
attacked and killed by three teenagers by bats in Fort 
Lauderdale in 2006. This incident was caught on a surveillance 
camera on the campus of Florida Atlantic University. The three 
offenders who were involved in the beatings of two other 
homeless men received sentences ranging from 15 years to life 
in prison.
    We have David Muhlhausen, an expert on the criminal justice 
programs at the Heritage Foundation. He has testified 
frequently before Congress on the efficiency and effectiveness 
of law enforcement grants administered by the United States 
Department of Justice. Mr. Muhlhausen joined Heritage in 1999 
after serving on the Senate Judiciary Committee, which is 
certainly a major part of your resume, where he specialized in 
crime and juvenile justice policies, but perhaps the most 
important part of his resume, he has a doctorate in public 
policy from the University of Maryland, Baltimore County, and a 
bachelor's degree in political science and justice studies from 
Frostburg State University.
    Erik Luna is a professor of law and an alumni faculty 
fellow at the Washington and Lee University. Upon graduation 
from law school, Professor Luna was a prosecutor in the State 
San Diego District Attorney's office. He has served as the 
senior Fulbright scholar to New Zealand, where he taught at the 
Victoria University Law School and conducted research on 
sentencing alternatives. Professor Luna graduated summa cum 
laude from the University of Southern California, received his 
J.D. with honors from Stanford Law School, where he was editor 
of the Stanford Law Review.
    We will start with Mr. Levin, Professor Levin.


    Mr. Levin. My name is Professor Brian Levin, and I am 
director of the nonpartisan Center for the Study of Hate and 
Extremism at California State University, San Bernardino, where 
I teach in the Department of Criminal Justice. And let me just 
add I am a full professor, if I may. While I am here in that 
capacity, I would also like to note that I serve as an unpaid 
independent adviser to the National Coalition for the Homeless. 
I want to personally thank Chairman Benjamin L. Cardin, Ranking 
Member Lindsey Graham, Chairman Arlen Specter, and the other 
members of the Committee for the privilege of testifying on the 
scourge of violence directed against homeless Americans. I have 
analyzed hate crime for almost 25 years, written extensively on 
the topic, compiled national hate crime statistical surveys, 
testified before the House, authored Supreme Court briefs, 
trained law enforcement, and have advised policymakers 
throughout North America and Europe.
    The National Coalition for the Homeless has worked 
tirelessly for the last 28 years to not only end homelessness 
but to ensure broad protection of homeless individuals. Since 
1999 the NCH has monitored and recorded acts of violence 
against our country's homeless.
    My testimony today in support of Senate bill 1765, the Hate 
Crimes Against the Homeless Statistics Act,'' will address 
issues relating to the inclusion of homeless status as a 
category in hate crime statutes, but specifically its inclusion 
in Federal data collection undertaken pursuant to the Hate 
Crime Statistics Act. Access to this type of objective official 
data is crucial for a society to assess the scope of 
criminality, implement policies, allocate resources, and craft 
legislation. From the onset it is important to consider that 
over the last three decades, both penalty enhancement laws and 
specifically data collection statutes have been expanded to 
cover additional group categories as new information arose to 
support such inclusion. It is my hope that the outline I 
provide today regarding the characteristics and prevalence of 
anti-homeless hate violence will correct a glaring error in 
current Federal efforts.
    The homeless face a rate of victimization that far exceeds 
that of other groups. Indeed, it is probably among the highest 
in the Western industrialized world. The more reliable hate 
crime statistics arising from homicide data and victimization 
studies indicate that we have a vulnerable population here, not 
just for crime in general, but for hate violence as well.
    Two key questions need to be addressed regarding the issue 
of discriminatory violence against the homeless. First, does 
the actual level of bias violence against the homeless justify 
a statutory change? And, second, does the category of 
homelessness fit the traditional framework of hate crime 
legislation and share material similarities with currently 
covered groups?
    It must be stressed that the modest data collection 
proposal presented here today does not increase punishment or 
change broad policies. Because we already have an operational 
national framework for hate crime data collection, it does not 
require us to create an additional bureaucracy. What it does 
allow us to do is get essential information about a 
qualitatively distinct form of crime that significantly affects 
a distinct class of victims.
    Emma Lazarus' poem, ``The New Colossus,'' is inscribed on 
our Statue of Liberty. It says: ``
    Give me your tired, your poor, your huddled masses yearning 
to breathe free, The wretched refuse of your teeming shore. 
Send these, the homeless, the tempest-tost to me. I lift my 
lamp beside the golden door!''
    However, today, unfortunately, studies indicate that 
America is not necessarily a hospitable place for our homeless 
citizens. Studies and surveys repeatedly indicate an annual 
risk of criminal victimization as high as 66 to 82 percent, as 
I said, about the highest for any subgroup in the Western 
    One thing that I think is key here--and I believe it is 
important to differentiate--is that we are talking about hate 
violence. We have excluded in this research acts, of insurance 
fraud where homeless people were targeted for death in Los 
Angeles, or, for instance, a case in New York, where we saw 
homeless people being kidnapped to deal drugs for notorious 
drug dealers.
    What we have seen over the last decade is a clear and 
disturbing pattern that shows the homeless population face an 
additional risk of discriminatory violence. These unprovoked 
hate attacks primarily by domiciled young assailants are not 
motivated by robbery, personal disputes, or drug dealing. These 
bias motivated attacks have claimed the lives of over 288 men 
and women nationally over the last decede. It is the homicide 
data that is regarded as the most reliable and useful, and I 
think we have to separate it out from other data and, indeed, 
compare apples to apples and oranges to oranges.
    In closing, I would just like to say this: I can only 
marvel at how proud my departed refugee Russian immigrant 
grandmother and World War II era POW father would be to see the 
country they loved so very much--and indeed my son who I 
brought here from California, to see the majesty of your 
chamber--working to extend the promise of Emma Lazarus' vision 
to embrace yet a new generation of Americans who, like my 
grandmother and my POW father who fought the Nazis, who like 
them need protection from the scourge of unrestrained violent 
    I want to thank you so much. I am so honored to be here and 
to answer any questions that you may have in the brief time 
that we have here today.
    [The prepared statement of Mr. Levin appear as a submission 
for the record.]
    Senator Cardin. Professor Levin, thank you for being here. 
It is nice to have your son with us here also today.
    I think we will just proceed down the witness table, so 
next we will hear from Simone Manning-Moon.


    Ms. Manning-Moon. Thank you, Senator Cardin. It is an honor 
to be here today.
    To Honorable Members of the Committee, my name is Simone 
Manning-Moon. I extend warm greetings and my gratitude for the 
opportunity to speak before you today. I also bring greetings 
from my parents, Sam and Georgia Gaynor, who still miss and 
grieve for their son Norris--my brother. It is a tragic twist 
of irony that my big brother wanted only to live a rather 
anonymous existence and mind his own business, and yet we are 
here today before this esteemed Committee in our Nation's 
capitol to discuss him and to put a name and a face to him--or 
rather, to all of those who find themselves in my brother's 
position, claiming the sky as their temporary ceiling.
    Despite all that would come later, my parents demonstrated 
their love for us in the most supreme way. Though not related 
by blood, we were both adopted when my parents had so much love 
to give and wanted children to give it to. We knew from an 
early age that we were adopted and loved immeasurably. We grew 
up under the tutelage of a United States Chief Petty Officer in 
the Navy and a mother who imparted a family structure which 
included study habits, responsibility for household chores, and 
a respect for those in authority. We were, in effect, no 
different than I suspect many of you who underwent the same 
upbringing. This with perhaps one exception: my brother was 
troubled. No one could quite pinpoint the issue. He was often 
hyperactive, sometimes angry, and seemed to look for something 
he did not have, and yet he expressed satisfaction with his 
surroundings. I took my cues--and much advice--from him 
oftentimes. Once my parents sat us down and earnestly explained 
the circumstances of how we came to be their children, going so 
far as to offer to help us if we wanted to find our ``real'' 
parents. I remember staring at my brother Norris when he 
declared his logic at the table: Why would we look for parents 
when we already had them? When those ``real'' parents gave us 
up? He was not interested. And because he was my big brother, 
nor was I. We were raised with high expectations, a low 
tolerance for things unproductive and considered foolish. And, 
therefore, it was no surprise when, upon my brother's high 
school graduation, he was expected to move in the direction of 
manhood and self-sufficiency. After all, this was our family 
    At that point, Norris' tumultuous journey began. He faced 
many things: his service in the United States Army, 
incarceration, drug abuse, the realization that he was not 
mentally healthy, and his struggles to find himself. For as 
many years as he was homeless, he was a contributing, 
upstanding member of society. He worked every day, kept himself 
in great physical condition, and otherwise lived what you may 
call a normal existence. But he was not well. Eventually he 
came to see that. I suppose I should be grateful that he 
realized many things before wooden bats and rake handles 
snuffed out his life.
    Norris Jay Gaynor. Not ``the homeless guy who was murdered 
that night;'' not ``the one they beat to death;'' not ``that 
homeless fatality.'' I implore you to actually say his name: 
Norris Gaynor. Son, brother, uncle. The one upon whom I called 
on for counsel and who called me from pay phones so that he 
could give me advice.
    I beg your pardon.
    The son my parents referred to as not ``homeless, but 
simply far from home.'' My brother Norris who, when our younger 
brother Jerome died of liver cancer many years ago when we were 
12 and 13, huddled in a corner with me to talk about how much 
we were going to miss him.
    Norris the artist. Norris the political news junkie in his 
later years, who knew more about local, State, and Federal 
politics than I did, and who missed, because of some notion 
that it was OK for people to beat and kill those on the street, 
what would have been the most important Presidential election 
of his lifetime--by mere months. He surely would have continued 
to discuss it to this day and apply his honed critical thinking 
skills to the State of Washington in 2010. How ironic that he 
of all people is not here to witness the current state of 
    His name is Norris Jay Gaynor. He was born in 1960. He was 
raised in a fine family. He had his problems, but he manned up 
and declared that he would not be a burden on anyone. When he 
learned later in his life that due to a variety of 
circumstances he could apply for Social Security benefits, he 
refused. ``I can't do that,'' he would say. ``I'm physically 
able to take care of myself.'' This is the person those men 
killed that night. This is the so-called bum. And the supreme 
irony? The taxpayers are now taking care of his bat-wielding 
murderers. And make no mistake: He was murdered because he was 
homeless. He was attacked because he was asleep on a park 
bench, minding his own business.
    To the direct point of the proposed legislation we are 
discussing today, he was murdered because people resented the 
homeless and thought that they could continue to prey on them 
and get away with it.
    I thank you for your time.
    [The prepared statement of Ms. Manning-Moon appear as a 
submission for the record.]
    Senator Cardin. Well, let me thank you for your testimony. 
We hear statistics and it is important to understand that every 
one of those statistics is a person and a family. Norris Jay 
Gaynor was a person, a brother, a son, and we thank you for 
sharing your relationship with him so that we understand that 
we are not just talking about one person; we are talking about 
a family, and many families in this country.
    Professor Erik Luna.


    Mr. Luna. Thank you very much, Senator Cardin----
    Senator Cardin. I think your mic is not on.
    Mr. Luna. Got it. Thank you. Thank you, Senator Cardin. 
Thank you for the opportunity to come and speak today on this 
very important topic.
    The plight of America's homeless is truly heartbreaking and 
has only become worse in recent years as a result of the 
Nation's financial crisis and the rise of home foreclosures and 
evictions. The happenstance that has left many people homeless 
underscores the proverb ``There but for the grace of God go 
I.'' And the compassion and tireless efforts of advocates for 
the homeless, including those in this room, confirm the 
fundamentally good-hearted nature of the American people.
    Against this background, it is hard not to be flabbergasted 
and repulsed by the crimes of violence committed against the 
homeless, as described in media accounts and in the recent 
report by the National Coalition for the Homeless. The same can 
be said of the brutal acts that propelled the federalization of 
so-called hate crimes: the murders of Matthew Shepard in 
Wyoming and James Byrd, Jr., in Texas.
    These events greatly disturbed conscientious citizens 
across the Nation. No decent American could argue against the 
investigation, prosecution, conviction, and punishment of those 
who commit such crimes. And, of course, that was never a 
question before this august body, nor was it a genuine issue 
among decent scholars, policy analysts, and the general public. 
Instead, the problem was the alleged necessity and the 
potential consequences and the ultimate constitutionality of 
the Hate Crimes Prevention Act.
    Now, that statute is not directly at issue today. Instead, 
as has been noted, the hearing is concerned with whether to 
amend a 20-year-old, the Hate Crime Statistics Act, to include 
``homeless status'' as a protected class for purposes of 
Federal law enforcement's tracking of hate crimes across the 
    Here I would like to briefly discuss the collection of hate 
crime statistics, including hate crimes against the homeless, 
and the justification for federalizing hate crimes, including 
those against the homeless.
    The first issue goes to the heart of the bill before the 
Senate and is a question with regards to hate crime statistics 
in general. The second issue, though not directly before this 
body, looms over this entire hearing.
    The guidelines promulgated pursuant to the Hate Crime 
Statistics Act described a hate crime as a ``criminal offense 
committed against a person or property which is motivated, in 
whole or in part, by the offender's bias.'' In turn, bias is 
defined as a ``preformed negative opinion or attitude toward a 
group of persons based on their race, religion, disability, 
sexual orientation, or ethnicity/national origin.'' The 
guidelines then provide a series of criteria that might support 
a finding of bias, and many of these items seem commonsensical. 
Others are less obvious or might raise legal questions if used 
at trial, such as whether a ``substantial portion of the 
community where the crime occurred perceived that the incident 
was motivated by bias.'' It is hard to imagine the evidentiary 
basis, let alone constitutional argument, for admitting 
testimony or documents about popular sentiment in order to 
prove that a crime has been committed.
    The guidelines also provide vignettes intended to 
demonstrate the appropriate classification of hate crimes. The 
vignettes would raise some serious constitutional issues if 
they involved an actual hate crime prosecution in Federal 
courts, but that is not actually what is going on here. 
Consistent with the Congressional mandate, the FBI guidelines 
make clear that their purpose is for data collection only.
    And this does not guarantee accurate classification. 
Offenders have all sorts of motivations, conscious and 
unconscious, including cynical beliefs about those who are in 
some way different from themselves. When hate crimes turn on 
one-word slurs or non-verbal expressions, the classifier is 
placed in the position of guesstimating the level of bias in 
the sometimes murky, often adrenalin-filled circumstances of a 
criminal episode. The standard of proof vaguely resembles 
``probable cause,'' the amount of evidence needed to conduct a 
search and seizure, for example, rather than the 
constitutionally mandated standard for conviction at trial.
    But again, this is of no constitutional moment when the 
goal is categorization of statistics rather than condemnation 
of defendants. And the inherent limitations of these statistics 
are--or should be--understood and acknowledged by policymakers; 
and as long as any errors in classification are random, the 
data provided under the Hate Crime Statistics Act give a 
reasonable overall picture with all the caveats attached.
    A far larger problem lies with the data provided by 
advocacy groups, who use disparate or loose standards, or no 
real standards at all, in gathering and presenting their data. 
Some groups count as hate crimes all reports, even if they do 
not amount to a criminal offense or only involve bias-motivated 
comments, and regardless of the source of information. 
Unfortunately, some of these problems appear to exist in the 
National Coalition for the Homeless' recent report, which is 
otherwise very laudable, on crimes against the homeless.
    There seems to be a conflation of two potentially 
overlapping but importantly distinct concepts: crimes against 
the homeless and hate crimes against the homeless.
    The vignettes in the report often share two common things: 
they are extremely sad, and I want to emphasize that; but they 
are often based on limited or no hard facts indicating that the 
incidents were motivated by bias against the homeless; or in 
some cases that a crime had even been committed. Instead, the 
incidents are often loaded with speculation or honest 
acknowledgments that the facts and motives remain unclear.
    In fact, one incident in the report listed as a non-lethal 
attack did not involve an attack at all, but instead detailed 
an admittedly repulsive Internet posting that in and of itself 
could never be the basis for a prosecution under the 
    Now, to be clear, the authors of the report may have 
additional information, evidence that would lead a reasonable 
and prudent person to conclude that the episodes were not only 
crimes but were hate crimes and based on criminal motivate, in 
whole or in part. But this information is not always obvious 
from the report.
    Let me also be clear that I do not believe that the well-
intentioned advocates for the homeless are trying to mislead 
anyone, and I assume the report is aimed at raising public 
awareness rather than raising constitutionally dubious 
legislation. But I do believe that Congress will eventually be 
called to add homeless status to the Hate Crimes Prevention 
Act, and for all I know, the lobbying process may have already 
begun. For this reason, I think all of the concerns that were 
raised with regards to federalizing hate crimes in general 
should be considered, not with regards to this particular act.
    Now, I know I am running short on time, so I will not go 
through those objections. Instead, let me just briefly mention 
what I believe would be somewhat of a surprise. I have no per 
se objection to homeless status being added to group 
characteristics in the Hate Crime Statistics Act. Indeed, I 
generally and strongly encourage the collection and 
dissemination of empirical data as a means to inform public 
judgments on criminal justice policy. In fact, I believe the 
bill at issue today does not go far enough to ensure full and 
accurate information about the commission of and response to 
crimes motivated by legislatively identified animus or bias. 
What is missing from our collective knowledge is whether the 
Hate Crimes Prevention Act, last year's legislation, is 
justified by the failure of State and local officials to 
prosecute crimes of violence that fall within the definition of 
a hate crime.
    To remedy this sort of information gap, Senator Hatch has 
previously proposed a study to look into the question of State 
default. Maybe this study would show a trend of under-
enforcement by State and local prosecutors and insufficient 
punishment for crimes of violence, evincing a need for some 
type of Federal action. Or maybe it would affirmatively 
demonstrate that State and local officials are assiduously 
fulfilling their obligations, that bias-motivated offenders are 
receiving just and effective punishment, and that the Hate 
Crimes Prevention Act is entirely unnecessary. Either way, the 
American people and their elected representatives would be in a 
better position to evaluate this contentious area of criminal 
justice policy.
    Again, thank you for the opportunity to speak today, and I 
look forward to answering any questions that you might have.
    [The prepared statement of Mr. Luna appear as a submission 
for the record.]
    Senator Cardin. Professor Luna, thank you very much for 
your testimony.
    We will now turn to Commander Richard Wierzbicki.

                      LAUDERDALE, FLORIDA

    Mr. Wierzbicki. Thank you, Senator. I am honored to testify 
today on behalf of the Broward County Florida Sheriff's Office. 
Sheriff Al Lamberti sends his regards and has submitted a 
statement for the hearing record.
    I am a longstanding member of the Nation's law enforcement 
community with over 32 years of public service and can attest 
to our profession's interest in advancing strategies that 
enhance the prevention, investigation, and prosecution of 
crimes committed against the homeless population, including 
crimes motivated by bias. Rigorous and widespread collection, 
reporting, and analysis of bias-motivated crime data is one 
such solution. That is what the Hate Crimes Against the 
Homeless Statistics Act, introduced by yourself and Senator 
Collins, would accomplish. That is why the Broward County 
Sheriff's Office, the largest accredited Sheriff's Office in 
the United States, fully supports this legislation.
    As a law enforcement officer, I have dealt with crimes 
committed against homeless people motivated by bias. For 
example, James Cunningham, a 54-year-old homeless man, was 
attacked in Pompano Beach, Florida, in October 2009. The attack 
was recorded on video and posted on YouTube by one of the 
offenders. The video showed two attackers shoving, taunting, 
and dragging Mr. Cunningham down a Pompano Beach street by the 
ankles as two other men held his arms and laughed.
    This dramatic incident reflects the intensity of bias that 
some hold against people experiencing homelessness. Many other 
lower-order incidents against homeless people occur routinely, 
but escape attention in part because the victims may not report 
them out of a belief that law enforcement officers will not 
investigate them sufficiently, or equally troubling, because 
members of the general population have come to accept 
victimization as an inevitable consequence of homelessness.
    Use of crime statistics generally is a staple of effective 
law enforcement practice. The availability of data about bias-
motivated crimes is instrumental in inspiring community action 
to protect various population groups subjected to bias and is 
critical to law enforcement agencies for developing plans of 
action, deploying resources, and measuring our progress.
    Take our experience in Broward County, Florida. I led the 
Hate Crimes/Anti-Bias Task Force created in 2008 by Sheriff 
Lamberti as a direct response to data in the Florida Attorney 
General's annual hate crimes report, which indicated that our 
county, Broward County, led the State in reported hate crimes 
and has for several years. The data told us where the crimes 
were occurring, who was being targeted, and why they were being 
attacked. Based on the data, we were then able to decide how 
and where to deploy resources to combat hate. For example, the 
data revealed that several houses of worship were vandalized 
with offensive symbols associated with hate. We responded in 
part by co-hosting and implementing a ``Keeping your Religious 
Institution Safe'' seminar for clergy and congregation members 
    Regrettably, our Attorney General's hate crimes report--no 
different than similar reports in many other States--did not 
tell us anything about bias-motivated crimes against the 
homeless population because such data is not collected as part 
of uniform crime reporting, even though those of us who have 
worked the beat know full well that such crimes occur. By 
lacking such data, our task force simply could not plan a 
meaningful response to bias-motivated crimes against our large 
homeless population.
    The true extent of bias-motivated crimes against the 
homeless population will never be known if we do not achieve 
multi-State reporting of such crimes through the existing 
national hate crime data collection and reporting system. 
Passage of the Hate Crimes Against the Homeless Statistics Act 
would remedy these gaps in information and consequent 
deficiencies in law enforcement practice.
    From an operations standpoint, I foresee absolutely no 
difficulty arising from the inclusion of the homeless 
population as a covered group by the Federal Hate Crimes 
Statistics Act. Further, the addition of the homeless 
population to the Hate Crimes Statistics Act will in no way 
impede efforts to collect and report data on bias-motivated 
crimes committed against currently covered groups.
    In conclusion, it is my strong conviction that it must 
become standard practice for all law enforcement agencies to 
vigorously collect data on the number and types of incidents of 
bias-motivated crimes against homeless victims. When the 
homeless population is left out of national hate crime data 
collection and reporting, we fail in our responsibility to 
protect all Americans equally.
    Thank you.
    [The prepared statement of Mr. Wierzbicki appear as a 
submission for the record.]
    Senator Cardin. Thank you very much for your testimony.
    At this point I would ask unanimous consent to place in the 
record a statement from Al Lamberti, the Broward County 
Sheriff's Office, and from Governor O'Malley of Maryland, and a 
statement from the National Law Center of the Homeless and 
Poverty, all in support of the legislation that has been 
referred to.
    [The statements appear as a submission for the record.]
    Senator Cardin. Thank you again for your testimony.
    Mr. Muhlhausen.


    Mr. Muhlhausen. Thank you. My name is David Muhlhausen. I 
am research fellow in the Center for Data Analysis at the 
Heritage Foundation. I thank Chairman Cardin, Ranking Member 
Graham, and the rest of the Committee for the opportunity to 
testify today about crimes against the homeless. The views I 
express in my testimony are my own and should not be construed 
as representing any official position of The Heritage 
    My spoken testimony will concentrate on two points.
    My first point is that while every case of a violent act 
committed against an innocent homeless person is tragic and 
should be prosecuted to the fullest extent of the law, the 
prevalence of these crimes does not rise to a level that 
requires formal data collection by the Federal Government.
    According to a recent report by the National Coalition for 
the Homeless, 2009 was the deadliest year in a decade for the 
murder of homeless persons by housed or domiciled individuals. 
By the coalition's own count, there were only 43 of these 
homicides in 2009. To properly understand the prevalence of 
homeless murders, we need to present the 43 murders as a 
percentage of all murders recorded by the Federal Bureau of 
    In 2009, the FBI counted 15,241 murders in the United 
States. The 43 murders counted by the National Coalition for 
the Homeless represents 0.28 percent of all murders recorded by 
the FBI. Conversely, all other murders accounted for 99.72 
percent of the total. Needless to say, the number of murders of 
the homeless by domiciled individuals is a minuscule fraction 
of total murders.
    A second way of putting the number of homeless murders in 
perspective is to express it as a rate per 100,000 homeless 
persons. The United States Department of Housing and Urban 
Development estimated that there were over 643,000 homeless 
individuals in a single point in time in 2009. The entire 
population of the United States was over 307 million people. 
Based on these populations figures, the national murder rate of 
the homeless by domiciled individuals is 6.7 incidents per 
100,000 homeless persons. The murder rate for the national 
population was five incidents per 100,000 residents. While the 
homeless murder rate is higher than the national rate, the 
difference is neither startling nor a justification for the 
Federal Government to begin formally collecting statistics on 
these crimes.
    Other subpopulations, like black males, face higher murder 
rates. While the National Coalition for the Homeless 
interpreted its data as presenting shocking, alarming, and 
disturbing findings, it produces no such startling numbers to 
support its goal of persuading the Federal Government to 
collect data on these crimes.
    My second point is that the Hate Crimes Against the 
Homeless Statistics Act of 2009 is unnecessary. When Congress 
considers the need for collecting data on any social 
phenomenon, the nature of the evidence presented to Congress 
should be instrumental to the decisionmaking process. A wrong 
assessment of the evidence can lead Congress to waste valuable 
resources. An objective and fair analysis of the data presented 
by the coalition simply does not provide support for the Hate 
Crimes Against the Homeless Statistics Act. Nevertheless, 
crimes against the homeless, like all other ordinary street 
crimes, should be prosecuted to the full extent of the law by 
State and local governments.
    While some may argue that the lack of reliable and 
objective data on the number of crimes committed against the 
homeless by domiciled individuals is justification enough for 
Federal intervention, such logic leads the Federal Government 
down the unending road of collecting data on any perceived 
social problem, whether or not the problem warrants attention 
by the Federal Government. The Hate Crimes Against the Homeless 
Statistics Act of 2009 is unnecessary.
    Thank you.
    [The prepared statement of Mr. Muhlhausen appear as a 
submission for the record.]
    Senator Cardin. Thank you very much for your testimony.
    Mr. Muhlhausen, I was listening to your testimony, and I 
thought you were testifying in support of my bill at some 
point. It seems like we need to have good information to make 
decisions. I appreciate you mentioning the statistics from the 
advocacy community. The issue is whether we have the same 
numbers as to the number of people who are being victimized 
because they are homeless versus the other statistical 
information we have about violent crime, which is collected in 
a different manner. It seems to me we are comparing apples to 
oranges, and the purpose of this bill, as I pointed out, is to 
get uniform information.
    And, second, it seemed to me that your testimony at times 
drifted toward your concern about the hate crimes law itself as 
to whether there should be a separate identification of crimes 
that are committed because of a person's protected status, and 
that debate has been one that we have had in Congress, and the 
majority of the Congress has acted to say that, yes, every 
violent act, every criminal act should be held accountable 
under our criminal justice system. Every single one. But when a 
person is victimized solely because of their race or solely 
because of their gender or their gender identity or their 
disability, that presents an inherent problem in our country 
that needs to be dealt with and needs to be identified and 
cannot go unchallenged. And that to me was the reason why the 
majority in Congress passed the hate crimes, signed into law, 
and we have amended it over time.
    Now, that is not the debate today. The debate today--and I 
want to get, if I could, into Mr. Wierzbicki--is to whether we 
have adequate information in order to make good judgments. And 
I was impressed by your testimony that it would be very little 
additional burden to your agency to identify this information 
for the FBI data collections.
    Mr. Wierzbicki. Yes, Senator. All it amounts to is checking 
under a different box. We would add the homeless into the 
category, check a box, and change the software, and it is 
pretty much a done deal.
    Senator Cardin. Now, I also applaud your efforts with the 
Hate Crimes/Anti-Bias Task Force. You have recognized that you 
have an issue that you need to deal with in Broward County. You 
have already identified the specific case of Mr. Cunningham, 
but I take it that you are seeing crimes, violent crimes, 
committed against individuals solely because they are homeless.
    Mr. Wierzbicki. That is correct.
    Senator Cardin. They are not being targeted for robbery; 
they are not being targeted for an anger assault. They are 
being targeted because they are perceived by the attacker as a 
worthy victim because they are homeless.
    Mr. Wierzbicki. The beatings in Broward County, the 
attackers, it was almost a sport to them, and the attacks were 
very violent. And I know research shows that a lot of the 
attacks are more violent because the attackers view them as 
subhuman and they have no place to retreat. So that is why 
Sheriff Lamberti decided we need to do the right thing and 
support the homeless inclusion into the Florida hate crimes 
    Senator Cardin. And, of course, it is underscored by the 
type of ads that you see in this magazine, you know, announcing 
that there would be a National Hobo Convention, that there will 
be floats, music, a vat of stew, and, yes, hobos, kill one for 
fun. Is that like you have a right to do that?
    Mr. Wierzbicki. Yes, it is unfortunate that we have sunk 
that low in our society. But one of the other things I 
mentioned when I was in Tallahassee, somebody came up to me and 
he said, ``Have you heard the new Jacksonville radio show? '' I 
said, ``What are you talking about? '' He said, ``It is called 
bum on bum.'' And the actual radio producers go out on the 
streets of Jacksonville and encourage two homeless men to fight 
each other, and I think the winner gets some kind of prize.
    Senator Cardin. Well, I think in order to counter the 
strategy, there are a lot of things we need to do, but we also 
need to have accurate information.
    Professor Luna, I was impressed by your testimony, and we 
had a hearing before the Judiciary Committee, I think it was 
just 2 weeks ago, dealing with rape and the reporting of rape 
crimes in America, and that we did not have consistent 
information as to the number of domestic violence cases that 
are taking place in this country. And one of the reasons that 
we did not have uniform definitions and we had the discretion 
of the investigating law enforcement officer, and the general 
view there was that it would be good to have that information.
    When the FBI is collecting data under the hate crimes, we 
get uniform reporting. It is not perfect, but it is certainly 
the best we have. So as I understand your testimony, having the 
information would be useful in developing strategies.
    Mr. Luna. Agreed. I have absolutely nothing against this 
bill itself. And I understand that you are not interested in 
getting into the discussion about what occurred last year, and 
if and when that point comes, I am sure there will be lots of 
testimony about that, whether to add it to the Hate Crimes Act 
that currently exists.
    I totally agree that it is a good thing to have that kind 
of information. It is a good thing to have some uniform 
standards. And my wish would be that the advocates, who, again, 
are tireless and they are doing--they are doing God's work in 
working for the homeless, no doubt. But I wish that they would 
be using the type of standards in reporting and identifying 
crimes that are utilized by the FBI through its delegated 
authority. And going through the report, as I said before, 
there are--each of these incidents is--it is disgusting. There 
is no doubt about that. But there is a question: Are these 
actual hate crimes as defined either under the Hate Crime 
Statistics Act or under the bill, the law that was passed last 
year. And there are some real doubts about that.
    And I also think that it would be important--again, I 
mentioned Senator Hatch's--he has been a long time asking for 
this. And I am not interested in it because I have a political 
axe to grind. I have no political axe to grind. But I would 
like to know whether or not the local and State officials are, 
in fact, defaulting on their obligation to prosecute these 
crimes. And from what I see, in both hate crimes reports, aside 
from the homeless, and also the reports presented by the 
National Coalition for the Homeless, I see law enforcement 
putting effort into this and prosecuting individuals and 
investigating it to the extent that they can. If there is a 
problem, the problem is that the homeless, and for 
understandable reasons, have some concern about presenting this 
information to the police. And this bill itself is not going to 
do anything to encourage the homeless to report their crimes 
if, in fact, they have some fear or if they do not know the 
various channels by which to report this information. That I 
think would be a good step.
    Senator Cardin. Well, I think I am going to leave it at 
that. I think we are in agreement that getting reliable 
information is important. I do not know the relative accuracy 
of the information because we do not have uniform reporting 
nationwide, and that is what I would like to see. So I do not 
reach a judgment as to the accuracy of the information that has 
been presented. But I do know I would feel much more 
comfortable, before I am called upon to act, to have that 
uniform information that the legislation that Senator Collins 
and I have introduced would do.
    Mr. Muhlhausen, let me see if I understand. Would you 
object to having uniform national information on status 
crimes--that is, we will not characterize them as hate crimes 
right now, but if we were to ask for uniform information as we 
so under the hate crimes statute for victims of racial violence 
or religious attacks, and homeless I add to that, do you object 
to getting that information done on a national level as 
compared to just information about crimes?
    Mr. Muhlhausen. Well, in general, I think it is a good 
thing to collect information, but one of my questions is that I 
doubt that this report that was just issued, I guess, last 
month rises to a level to justify Federal legislation; and, 
second, that--where do we draw the line? Anytime any group----
    Senator Cardin. Let me just stop you for 1 second. I 
believe that you would find the statistical information on most 
of the status crimes that I have talked about--in other words, 
violence based upon race. If you take it on the murder rate, 
you would not isolate enough to make it a statistically worthy 
venture because that is not the main thrust of the use of the 
information. It is to deal with violence against individuals 
solely because of race to try to deal with the underlying 
problems in our community of racial tensions and violence.
    My question to you is: Is it useful to have that 
information? Or do you oppose knowing the amount of violent 
acts against individuals based upon race, based upon religion, 
based upon gender or gender identification?
    Mr. Muhlhausen. I do not oppose collecting the basic 
information. What I am----
    Senator Cardin. Why don't you add homeless to that?
    Mr. Muhlhausen. Well, what I am concerned about is that the 
data presented--it was presented in a way to suggest there was 
a rising tide of violence, and in fact, there is no tide. It 
    Senator Cardin. We do not know that. I mean, I will go so 
    Mr. Muhlhausen. Based on the evidence.
    Senator Cardin. Well, we do not----
    Mr. Muhlhausen. That we have.
    Senator Cardin. If you base it upon the information that 
has been presented by the advocacy community, then we do have a 
rising problem, that there has been an increased amount of 
violence, and that it is statistically much higher than other 
protected classes, if you accept their information.
    I am going to agree with you. I do not know whether that is 
accurate relative to the other protected classes or not. That 
is what we are trying to find out.
    Mr. Muhlhausen. Well, I think a good thing to find out is, 
if this bill were to move, how about add Senator Hatch's 
recommendation, what Professor Luna talked about, and collect 
prosecution information. What is going on? Are these crimes 
being prosecuted? Because I think these crimes, when they are 
committed, they should be prosecuted.
    Senator Cardin. We do not disagree with that, but it 
reminds me of people who complain that we should not try to 
stop wars because we cannot stop all wars or we should not 
fight for human rights because we cannot end all human rights 
abuses. I mean, you make progress where you can make progress.
    Mr. Muhlhausen. Well, I think the fact is that there are 
other segments of society that are probably far more 
victimized. I mean, just read the report, and, you know, it is 
    Senator Cardin. I am for making progress in every area we 
    Mr. Muhlhausen. Burglars target people with homes. We are 
not concerned about that. I mean, what about crimes against 
people with homes?
    Senator Cardin. We are concerned about that.
    Mr. Muhlhausen. We are not collecting statistics on that 
necessarily as a hate crime.
    Senator Cardin. But we do have uniform statistics on that. 
The problem--we do have uniform crime statistics that are 
available nationwide. The problem is it is not divided as to 
the homeless today. So I take issue with you. I think we do 
have good information on burglaries in this country. We do not 
on attacks against the homeless. That is the purpose of the 
bill, is to get that information. That is why I was trying to 
figure out your objections, and you say you do not object to 
having good information, you say you do not object to having it 
isolated into protected classes. So I am going to leave it at 
that because I just interpret from your comments that you want 
to be opposed to this bill, which is your right to do it, but I 
do not see any rational distinction if you support collecting 
information on crimes, if you support collecting information 
against people because of their race, et cetera. Then we can 
debate whether homeless is important enough or not, and that is 
an issue for Congress to make a judgment on. Thank you.
    Professor Levin, let me just try to get you engaged in this 
discussion, because, you know, one of our principal objectives 
is to try to understand the homeless and try to reduce the 
number of people that are homeless. What is concerning me is 
that we see a lot of military people returning who end up 
homeless. We see domestic violence leading to the homeless 
population. We see people with addictions becoming homeless.
    Is there a trend here that we should be concerned about as 
we try to protect the people from becoming homeless, but those 
who become homeless, to get the services they need to protect 
them not only against violence but to protect their basic 
    Mr. Levin. Absolutely, and with unemployment notionally at 
9.6 percent and the difficult landscape housing situation, 
which has been well documented by this body, the Senate, I 
think it is important to recognize that many people who thought 
that they would never be homeless including veterans and 
families have, in fact, become homeless.
    What I am even more astounded by, with all due respect to 
my fellow panel members, is how there are those who could be 
against merely collecting data.
    The other thing that I would like to address is that I 
think it would be nice to have some common sense prevail here. 
As Professor James Weinstein from Arizona said, Kristallnacht 
was more than merely the sum of the assaults, murder and arsons 
that took place on the evenings of November 9 and 10, 1938. 
These are offenses against a pluralistic democracy. The 
criminal law consistently looks at context: the target, the 
timing, the location, and the motive of offenses. Indeed, 
motive--as the Supreme Court held, by the way, in a case where 
I wrote two briefs, Wisconsin v. Mitchell--is something that 
the Government can indeed punish by statute, not just with 
regard to sentencing. And we have as a society decided that 
discrimination, as the United States Supreme Court said in 
Roberts v. U.S. Jaycees, is a scourge that the Government has 
an obligation to eradicate.
    So when we talk about the fact that there are homicides out 
there--for instance, there are a lot of homicides committed 
against African-American males. However, above and beyond that 
risk, there is an additional risk from people who are attacking 
individuals for discriminatory urposes and that not only places 
victims in great peril, it undermines institutions and 
processes of our pluralistic democracy. I pursue this position 
for the same reasons that I stood with my conservative friends 
of goodwill in support of the Church Arson Prevention Act, 
because burning a church in a pluralistic society such as ours 
is different than burning a barn. We also have to note that 
many of the homicides in our society involve what we would call 
routine personal relationships, bar fights and intimate 
violence--these are horrible crimes. But the notion of random 
attacks by people who select others because of a status 
characteristic is something that is also distinctly egregious. 
And, indeed, the trial judge in Barclay v. Florida, which went 
up to the United States Supreme Court, I think said it quite 
well. He said, ``I, like so many American Combat Infantry 
Soldiers, walked the battlefields of Europe and saw the 
thousands of dead American and German soldiers, and I witnessed 
the concentration camps where innocent civilians and children 
were murdered in a war of racial and religious extermination. 
to attempt to initiate such a war in this country is to 
horrible to contemplate.  .  .  .''
    So I think when we are looking at data, we have to 
understand, for instance, that in our society we look at 
context. Robbing a bank is treated under Federal legislation 
differently and enumerated differently than robbing a liquor 
store because of the additional threat to our eonomic system.
    Sexual assault of all kinds is egregious, but sexual 
assault of a minor is something that we extend more punishment 
to. Similarly, being disorderly outside the Senate building is 
treated differently than being disorderly on an airplane.
    So it is important to recognize that the criminal law has 
consistently throughout our nation's history taken into account 
motive, context, offender status, victim status and--
recidivism, for instance. We treat people who commit crimes 
more than once differently than we treat first offenders. Here 
we already have a group of people who are being horrendously 
victimized and face an additional risk on top of that.
    I have appended to my testimony a whole list of studies. 
Are there limitations geographically? Are there limitations in 
a variety of ways? Yes. But in the same way that a smoke alarm 
sends out a credible message that something is wrong, I believe 
that we have enough data to indicate that there is an 
additional problem. And, indeed, the kind of offenders that we 
are seeing commit these bias attacks are different and may very 
well need a different type of deterrence. For instance, 
reckless driving is a threat that is out there, but drunk 
driving is as well and treated differently. And as we can see 
here--and I would like to say that this does leave out 1 year, 
so let us even bump up an estimate for the FBI documented 
homicides to maybe 110. We are seeing a scourge, and within 
that offenders who resemble very much the types of offenders 
who commit the ``mainstream'' traditional hate crimes--thrill 
attackers, turf protectors, and hardened bigots.
    What I believe we are seeing is a shift from traditional 
targets like gays, Jews or African-Americans to others, in part 
because the homeless are still regarded as socially acceptable 
targets for aggression. And one of the things that the research 
has shown, as Professor Robin Williams--emeritus of Cornell, 
maintains, is that these offenders act on a printed circuit of 
stereotypes. Some like neo-Nazi skinheads seek out and attack 
the homeless numerous times, including most recently in 
Cincinnati, Ohio. These offenders act on cleansing their 
communities, as part of an Aryan notion of purification. We 
also see people including many non-skinheads who maybe 20 years 
ago would have defended their communities against African-
Americans moving in.
    Most commonly, we see a slew of young offenders--indeed, 
the majority who are under age 20 who often attack in part for 
excitement and peer validation. The notion that we cannot 
benefit, particularly our local police departments, our human 
relations institutions, and our schools by more data to track 
locations, offenders and recidivism, astounds me. When Boston 
put forth enforcement of hate crime laws, they, at least for 
decades, did not find any recidivism. So I think we should 
study this, whether or not we eventually decide to enhance 
penalties. But I do think we have to say that by offender and 
victim characteristics and, indeed, the way these crimes affect 
whole communities, these random stranger-based crimes, 
particularly with crimes like this, for example, and there is 
much not capture by existing raw numbers: is overkill . It is 
not like most crimes where a meaningful act of compliance on 
the part of the victim can limit their risk. Here we are seeing 
overkill with imprecise weapons of opportunity by lynch mobs of 
youth, and we have to collect more data. Indeed, it is the very 
fact that the data has some limitations that we need 
consistent, uniform law enforcement data.
    Last point. Even the New York City Police Department, which 
I was a proud member of and am a third-generation former 
officer, reclassifies about 10 percent of its initial hate 
crimes every year, and I even have the documentation here for 
    Senator Cardin. Well, thank you, Professor. I appreciate 
    Let me just again, Ms. Manning-Moon, your brother, Norris 
Jay Gaynor, it seems like he made peace with his lifestyle, 
that he was proud that he was taking care of himself on the 
streets. I am impressed by the fact that he did not want to 
take Government benefits because he thought he could take care 
of himself. So he did not really ask much from this country.
    Ms. Manning-Moon. No, he did not. If he did realize on some 
days that he needed help, his innate notion that he should not 
rely on the Government or anyone--and he has actually said that 
to me many times--took over and won out.
    In fact, there was a gentleman who wrote a piece after my 
brother's death, an op-ed piece in one of the Florida 
newspapers saying that he had befriended my brother over the 
past couple of years and that he would sit on the park bench 
and talk with him about--and my brother would give opinions 
about the museum clock that stopped beating. And at one point 
this gentleman tried to accompany my brother to a facility that 
could get him some help, and he ended up bolting from that for 
what might be a variety of reasons, but, you know, knowing him 
the way I do, it would be largely because he wanted to stay 
independent. He did not want to be a burden on anyone.
    It is ironic that his killers, who fit the profile that 
Professor Levin just described, actually had many of, if not 
more of, the problems that my brother had in his younger years. 
But they somehow never carried the accompanying notion that 
they were to man up and try to take care of themselves. That 
was a memo that was never received by them, I suppose.
    Senator Cardin. Well, your brother had a right, though, to 
expect that the country that he lived in, which is the envy of 
the world for promoting liberty and justice and opportunity for 
all of its citizens, a model democracy, that that country would 
do everything in its power to prevent the type of hate activity 
that has burdened so many countries over the history of the 
world, which the United States--we have had our share. Don't 
get me wrong. But we have always responded to it. And we 
embrace diversity in America. We do. That is our strength. This 
is a Nation of diversity, and we have a responsibility to do 
everything we can to keep people safe.
    Ms. Manning-Moon. Yes, Senator. Thank you for that. I would 
also like to augment Professor Levin's comment specifically 
regarding the recidivism or lack of recidivism issue with those 
who fall into this category of attacker. The local newspaper 
described one of the convicted killers of my brother and 
attacker of two others that night as someone whose friends said 
routinely went out seeking homeless people to beat and attack. 
So this was not uncommon at all, and if we think about what the 
value would be of having legislation that would actually help 
the law enforcement department in Broward County and elsewhere 
track, understand, have on their radar this type of behavior, 
imagine what the possibilities would be if that had happened 
earlier, that tracking had happened earlier. And Brian Hooks--
is his name--would have been identified earlier as someone who 
is prone to this type of behavior.
    Senator Cardin. Well, I have opportunities to travel 
throughout Maryland frequently and talk to the people of our 
State, and I can tell you that they want us at the national 
level to do everything we can to reduce the number of homeless, 
particularly those who are homeless because of a circumstance 
such as domestic violence or the fact that they have come back 
from serving our Nation in war and cannot make the transition 
back; they need help in order to do that. So they want us to do 
that, but they also understand that this Nation needs--its 
first priority is to protect its citizens and that when someone 
is brutally attacked or put in harm's way solely because they 
have no roof over their heads at night, that is not America. 
But they want to know the facts in order--they want us to act 
upon good information.
    Ms. Manning-Moon. Well, I appreciate that, Senator, and I 
would just say on a passionate note on behalf of both my father 
and myself, I wholeheartedly support the gathering of data to 
make a determination. And I must say that anything that I hear 
that promotes the concept of not gathering information so that 
we can keep a disjointed conclusion is a rather unintelligent 
argument. You have to gather the data first in order to come to 
your conclusions. This is what I have been taught all my life. 
So I wholeheartedly support this legislation.
    Senator Cardin. Thank you. Well, I want to thank all five 
of our witnesses. I think this has been extremely helpful. I 
particularly, again, appreciate Ms. Manning-Moon putting a face 
on the issue. When you have national statistics or numbers, 
they get lost at times and you realize that they are really 
people and families, and that is very important.
    Commander Wierzbicki, I appreciate your testimony. To hear 
from the law enforcement directly--you are on the front lines. 
You are out there battling every day, and we very much 
appreciate the efforts that you are making, and please express 
our appreciation to your fellow people who are out there, 
police officers or the sheriff's department doing the work.
    I thank the other three witnesses for their expertise on 
this subject and trying to help us figure out what we should do 
next. The purpose of this hearing was to gather information 
from you all as to what Congress can do to carry out our 
principal responsibility of protecting the people of this 
Nation. I found the hearing very helpful, and we will decide 
next how to proceed, and we thank you for your testimony.
    The Committee record will stay open for 1 week in the event 
that there are additional questions that are asked by any of 
our members. We would ask, if that is the case, that you try to 
reply as quickly as possible.
    With that, the Subcommittee will stand adjourned. Thank you 
all very much.
    [Whereupon, at 11:16 a.m., the Subcommittee was adjourned.]
    [Additional material is being retained in the Committee 
files, see Contents.]
    [Questions and answers and submissions for the record