[Congressional Record Volume 145, Number 104 (Wednesday, July 21, 1999)]
[Senate]
[Pages S8952-S8954]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. HATCH:
  S. 1406. A bill to combat hate crimes.


                         combating hate crimes

  Mr. HATCH: Mr. President, in the face of some of the hate crimes that 
have riveted public attention--and have unfortunately made the name 
Benjamin Nathaniel Smith synonymous with the recent spate of shootings 
in Illinois; the names James Byrd synonymous with Jasper, Texas; and 
the name Matthew Shepard synonymous with Laramie, Wyoming--I am 
committed in my view that the Senate must lead and speak against hate 
crimes.
  During and just preceding this past generation, Congress has been the 
engine of progress in securing America's civil rights achievements and 
in driving us as a society increasingly closer to the goal of equal 
rights for all under the law.
  Historians will conclude, I have little doubt, that many of America's 
greatest strides in civil rights progress took place just before this 
present moment on history's grand time line: Congress protected 
Americans from employment discrimination on the basis of race, sex, 
color, religion, and national origin with the passage of the Civil 
Rights Act of 1964; Congress protected Americans from gender-based 
discrimination in rates of pay for equal work with the Equal Pay Act of 
1963; and from age discrimination with the passage of the Age 
Discrimination in Employment Act of 1967; Congress extended protections 
to immigration status with the Immigration Reform and Control Act in 
1986, and to the disabled with the passage of the Americans With 
Disabilities Act in 1990. And the list continues on and on.
  Yet while America's elected officials have striven mightily through 
the passage of such measures to stop discrimination in the workplace, 
or at the hands of government actors, what remains tragically 
unaddressed in large part is discrimination against peoples' own 
security--that most fundamental right to be free from physical harm.
  Despite our best efforts, discrimination continues to persist in many 
forms in this country, but most sadly in the rudimentary and malicious 
form of violence against individuals because of their identities.
  A fair question for this Congress is what it will do to stem this 
ugly form of hatred and to counter hate crime as boldly as this 
Congress has attempted to redress workplace bias and governmental 
discrimination. Will we continue to advance boldly in this latest civil 
rights frontier by furthering Congress' proud legacy, or will we demur 
on the ground that this is not now a battle for our waging?
  Let me state, unequivocally, that this is America's fight. As much as 
we condemn all crime, hate crime can be more sinister that non-hate 
crime.
  A crime committed not just to harm an individual, but out of the 
motive of sending a message of hatred to an entire community--
oftentimes a community defined on the basis of immutable traits--is 
appropriately punished more harshly, or in a different manner, than 
other crimes.
  This is in keeping with the long-standing principle of criminal 
justice--as recognized recently by the U.S. Supreme Court in a 
unanimous decision upholding Wisconsin's sentencing enhancement for 
hate crimes--that the worse a criminal defendant's motive, the worse 
the crime. (Wisconsin v. Mitchell, 1993)
  Moreover, hate crimes are more likely to provoke retaliatory crimes; 
they inflict deep, lasting, and distinct injuries--some of which never 
heal--on victims and their family members; they incite community 
unrest; and, ultimately, they are downright un-American.
  The melting pot of America is, worldwide, the most successful multi-
ethnic, multi-racial, and multi-faith country in all recorded history. 
This is something to ponder as we consider the atrocities so routinely 
sanctioned in other countries--like Serbia so recently--committed 
against persons entirely on the basis of their racial, ethnic, or 
religious identity.
  I am resolute in my view that the federal government can play a 
valuable role in responding to hate crime. One example here is my 
sponsorship of the Hate Crime Statistics Act of 1990, a law which 
instituted a data collection system to assess the extent of hate crime 
activity, and which now has thousands of voluntary law enforcement 
agency participants.
  Another, more recent example, is the passage in 1996 of the Church 
Arson Protection Act, which, among other things, criminalized the 
destruction of any church, synagogue, mosque, or other place of 
religious worship because of the race, color, or ethnic characteristics 
of an individual associated with that property.
  To be sure, however, any federal response--to be a meaningful one--
must abide by the constitutional limitations imposed on Congress, and 
be cognizant of the limitations on Congress' enumerated powers that are 
routinely enforced by the courts.
  This is more true today than it would have been even a mere decade 
ago, given the significant revival by the U.S. Supreme Court of the 
federalism doctrine in a string of decisions beginning in 1992. Those 
decisions must make us particularly vigilant in respecting the courts' 
restrictions on Congress' powers to legislate under section 5 of the 
14th amendment, and under the commerce clause. [City of Boerne 
(invalidating Religious Freedom Restoration Act under 14th amendment); 
Lopez (invalidating Gun-Free School Zones Act under commerce clause); 
Brzondala (4th circuit decision

[[Page S8953]]

invalidating one section of the Violence Against Women Act on both 
grounds).]
  We therefore need to arrive at a federal response to hate crimes that 
is not only as effective as possible, but that carefully navigates the 
rocky shoals of these court decisions. To that end, I have prepared an 
approach that I believe will be not only an effective one, but one that 
would avoid altogether the constitutional risks that attach to other 
possible federal responses that have been raised.
  Indeed, just a couple months ago, Deputy Attorney General Eric Holder 
testified before the Senate Judiciary Committee that states and 
localities should continue to be responsible for prosecuting the 
overwhelming majority of hate crimes, and that no legislation is 
worthwhile if it is invalidated as unconstitutional.
  There are four principal components to my approach:
  First, it creates a meaningful partnership between the federal 
government and the states in combating hate crime, by establishing 
within the Justice Department a fund to assist state and local 
authorities in investigating and prosecuting hate crime.
  Much of the cited justification given by those who advocate broad 
federal jurisdiction over hate crimes is a lack of adequate resources 
at the state and local level.
  Accordingly, before we take the step of making every criminal offense 
motivated by a hatred of someone's immutable traits a federal offense, 
it is imperative that we equip states and localities with the resources 
necessary so that they can undertake these criminal investigations and 
prosecutions on their own.

  Second, my approach undertakes a comprehensive analysis of the raw 
data that has been collected pursuant to the 1990 Hate Crime Statistics 
Act, including a comparison of the records of different jurisdictions--
some with hate crime law, others without--to determine whether there 
is, in fact, a problem in certain states' prosecution of those criminal 
acts constituting hate crimes.
  Third, my approach directs an appropriate, neutral forum to develop a 
model hate crimes statute that would enable states to evaluate their 
own laws, and adopt--in whole or in part from the model statute--hate 
crime legislation at the state level.
  One of the arguments cited for a federalization of enforcement is the 
varying scope and punitive force of state laws. Yet there are many 
areas of grave national concern--such as drunk driving, by way of 
example--that are appropriately left to the states for criminal 
enforcement and punishment.
  Before we make all hate crimes federal offenses, I believe we should 
pursue avenues that advance consistency among the states through the 
voluntary efforts of their legislatures. Perhaps, upon completion of 
this model hate crime law, Congress will review its recommendation and 
consider additional ways to promote uniformity among the states.
  Fourth, my proposal makes a long-overdue modification of our existing 
federal hate crime law (passed in 1969) to allow for the prosecution by 
federal authorities of those hate crimes that are classically within 
federal jurisdication--that is, hate crimes in which state lines have 
been crossed.
  Mr. President, I believe that passage of this comprehensive measure 
will prove a strong antidote to the scourge of hate crimes.
  It is no answer for the Senate to sit by silently while these crimes 
are being committed. The ugly, bigoted, and violent underside of some 
in our country that is reflected by the commission of hate crimes must 
be combated at all levels of government.
  For some, federal leadership necessitates federal control. I do not 
subscribe to this view, especially when it comes to this problem. It 
has been proposed by some that to combat hate crime Congress should 
enact a new tier of far-reaching federal criminal legislation. That 
approach strays from the foundations of our constitutional structure--
namely, the first principles of federalism that for more than two 
centuries have vested states with primary responsibility for 
prosecuting crimes committed within their boundaries.
  As important as this issue is, there is little evidence such a step 
is warranted, or that it will do any more than what I have proposed. In 
fact, one could argue that national enforcement of hate crime could 
decrease if states are told the federal government has assumed primary 
responsibility over hate crime enforcement.
  Accordingly, we must lead--but lead resonsibly--recognizing that we 
live in a country of governments of shared and divided 
responsibilities.
  In confronting a world of prejudice greater than any of us can now 
imagine, Lincoln said to Congress in 1862 that the ``dogmas of the 
quiet past'' were ``inadequate to the stormy present. The occasion is 
piled high with difficulty, and we must rise--with the occasion. As our 
case is new, so we must think anew, and act anew.''
  In that very spirit, I encourage this body to question the dogma that 
federal leadership must include federal control, and I encourage this 
body to act anew by supporting a proposal that is far-reaching in its 
efforts to stem hate crime, and that is at the same time respectful of 
the primacy states have traditionally enjoyed in prosecuting crimes 
committed within their boundaries.
  Ultimately, I believe the approach I have set forth is a principled 
way to accommodate our twin aims--our well-intentioned desire to 
investigate, prosecute, and, hopefully, end these vicious crimes; and 
our unequivocal duty to respect the constitutional boundaries governing 
any legislative action we take.
  My proposal should unite all of us on the point about which we should 
most fervently agree--that the Senate must speak firmly and 
meaningfully in denouncing as wrong in all respects those actions we 
have increasingly come to know as hate crimes. Our continued progress 
in fighting to protect Americans' civil rights demands no less.
  Mr. President, I feel deeply about this. I hope our colleagues will 
look at this seriously and realize this is the way to go. It 
appropriately respects the rights of the States and the rights of the 
Federal Government. It appropriately sets the tone. It appropriately 
goes after these types of crimes in a very intelligent and decent way. 
I believe it is the way to get at the bottom of this type of criminal 
activity in our society today.
  I ask unanimous consent that the text of the bill be printed in the 
Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1406

       Be it enacted by the Senate and House of Representatives of 
     the United States of America in Congress assembled,

     SECTION 1. HATE CRIMES.

       (a) Declarations.--Congress declares that--
       (1) further efforts must be taken at all levels of 
     government to respond to the staggering brutality of hate 
     crimes that have riveted public attention and shocked the 
     Nation;
       (2) hate crimes are prompted by bias and are committed to 
     send a message of hate to targeted communities, usually 
     defined on the basis of immutable traits;
       (3) the prominent characteristic of a hate crime is that it 
     devastates not just the actual victim and the victim's family 
     and friends, but frequently savages the community sharing the 
     traits that caused the victim to be selected;
       (4) any efforts undertaken by the Federal Government to 
     combat hate crimes must respect the primacy that States and 
     local officials have traditionally been accorded in the 
     criminal prosecution of acts constituting hate crimes; and
       (5) an overly broad reaction by the Federal Government to 
     this serious problem might ultimately diminish the 
     accountability of State and local officials in responding to 
     hate crimes and transgress the constitutional limitations on 
     the powers vested in Congress under the Constitution.
       (b) Studies.--
       (1) Collection of data.--
       (A) Definition of hate crime.--In this paragraph, the term 
     ``hate crime'' means--
       (i) a crime described in subsection (b)(1) of the first 
     section of the Hate Crime Statistics Act (28 U.S.C. 534 
     note); and
       (ii) a crime that manifests evidence of prejudice based on 
     gender or age.
       (B) Collection from cross-section of states.--Not later 
     than 120 days after the date of enactment of this Act, the 
     Comptroller General of the United States, in consultation 
     with the National Governors' Association, shall select 10 
     jurisdictions with laws classifying certain types of crimes 
     as hate crimes and 10 jurisdictions without such laws from 
     which to collect data described in subparagraph (C) over a 
     12-month period.

[[Page S8954]]

       (C) Data to be collected.--The data to be collected are--
       (i) the number of hate crimes that are reported and 
     investigated;
       (ii) the percentage of hate crimes that are prosecuted and 
     the percentage that result in conviction;
       (iii) the length of the sentences imposed for crimes 
     classified as hate crimes within a jurisdiction, compared 
     with the length of sentences imposed for similar crimes 
     committed in jurisdictions with no hate crime laws; and
       (iv) references to and descriptions of the laws under which 
     the offenders were punished.
       (D) Costs.--Participating jurisdictions shall be reimbursed 
     for the reasonable and necessary costs of compiling data 
     under this paragraph.
       (2) Study of trends.--
       (A) In general.--Not later than 18 months after the date of 
     enactment of this Act, the Comptroller General of the United 
     States and the General Accounting Office shall complete a 
     study that analyzes the data collected under paragraph (1) 
     and under the Hate Crime Statistics Act of 1990 to determine 
     the extent of hate crime activity throughout the country and 
     the success of State and local officials in combating that 
     activity.
       (B) Identification of trends.--In the study conducted under 
     subparagraph (A), the Comptroller General of the United 
     States and the General Accounting Office shall identify any 
     trends in the commission of hate crimes specifically by--
       (i) geographic region;
       (ii) type of crime committed; and
       (iii) the number of hate crimes that are prosecuted and the 
     number for which convictions are obtained.
       (c) Model Statute.--
       (1) In general.--To encourage the identification and 
     prosecution of hate crimes throughout the country, the 
     Attorney General shall, through the National Conference of 
     Commissioners on Uniform State Laws of the American Law 
     Institute or another appropriate forum, and in consultation 
     with the States, develop a model statute to carry out the 
     goals described in subsection (a) and criminalize acts 
     classified as hate crimes.
       (2) Requirements.--In developing the model statute, the 
     Attorney General shall--
       (A) include in the model statute crimes that manifest 
     evidence of prejudice; and
       (B) prepare an analysis of all reasons why any crime 
     motivated by prejudice based on any traits of a victim should 
     or should not be included.
       (d) Support for Criminal Investigations and Prosecutions by 
     State and Local Law Enforcement Officials.--
       (1) Assistance other than financial assistance.--
       (A) In general.--At the request of a law enforcement 
     official of a State or a political subdivision of a State, 
     the Attorney General, acting through the Director of the 
     Federal Bureau of Investigation, shall provide technical, 
     forensic, prosecutorial, or any other form of assistance in 
     the criminal investigation or prosecution of any crime that--
       (i) constitutes a crime of violence (as defined in section 
     16 of title 18, United States Code);
       (ii) constitutes a felony under the laws of the State; and
       (iii) is motivated by prejudice based on the victim's race, 
     ethnicity, or religion or is a violation of the State's hate 
     crime law.
       (B) Priority.--In providing assistance under subparagraph 
     (A), the Attorney General shall give priority to crimes 
     committed by offenders who have committed crimes in more than 
     1 State.
       (2) Grants.--
       (A) In general.--There is established a grant program 
     within the Department of Justice to assist State and local 
     officials in the investigation and prosecution of hate 
     crimes.
       (B) Eligibility.--A State or political subdivision of a 
     State applying for assistance under this paragraph shall--
       (i) describe the purposes for which the grant is needed; 
     and
       (ii) certify that the State or political subdivision lacks 
     the resources necessary to investigate or prosecute the hate 
     crime.
       (C) Deadline.--An application for a grant under this 
     paragraph shall be approved or disapproved by the Attorney 
     General not later than 24 hours after the application is 
     submitted.
       (D) Grant amount.--A grant under this paragraph shall not 
     exceed $100,000 for any single case.
       (E) Report.--Not later than December 31, 2001, the Attorney 
     General, in consultation with the National Governors' 
     Association, shall submit to Congress a report describing the 
     applications made for grants under this paragraph, the award 
     of such grants, and the effectiveness of the grant funds 
     awarded.
       (F) Authorization of appropriations.--There is authorized 
     to be appropriated to carry out this paragraph $5,000,000 for 
     each of fiscal years 2000 and 2001.
       (e) Interstate Travel To Commit Hate Crime.--
       (1) In general.--Chapter 13 of title 18, United States 
     Code, is amended by adding at the end the following:

     ``Sec. 249. Interstate travel to commit hate crime

       ``(a) In General.--A person, whether or not acting under 
     color of law, who--
       ``(1) travels across a State line or enters or leaves 
     Indian country in order, by force or threat of force, to 
     willfully injure, intimidate, or interfere with, or by force 
     or threat of force to attempt to injure, intimidate, or 
     interfere with, any person because of the person's race, 
     color, religion, or national origin; and
       ``(2) by force or threat of force, willfully injures, 
     intimidates, or interferes with, or by force or threat of 
     force attempts to willfully injure, intimidate, or interfere 
     with any person because of the person's race, color, 
     religion, or national origin,
     shall be subject to a penalty under subsection (b).
       ``(b) Penalties.--A person described in subsection (a) who 
     is subject to a penalty under this subsection--
       ``(1) shall be fined under this title, imprisoned not more 
     than 1 year, or both;
       ``(2) if bodily injury results or if the violation includes 
     the use, attempted use, or threatened use of a dangerous 
     weapon, explosives, or fire, shall be fined under this title, 
     imprisoned not more than 10 years, or both; or
       ``(3) if death results or if the violation includes 
     kidnapping or an attempt to kidnap, aggravated sexual abuse 
     or an attempt to commit aggravated sexual abuse, or an 
     attempt to kill--
       ``(A) shall be fined under this title, imprisoned for any 
     term of years or for life, or both; or
       ``(B) may be sentenced to death.''.
       (2) Technical amendment.--The analysis for chapter 13 of 
     title 18, United States Code, is amended by adding at the end 
     the following:

``249. Interstate travel to commit hate crime.''.
                                 ______