[Congressional Record Volume 148, Number 75 (Monday, June 10, 2002)]
[Senate]
[Pages S5267-S5276]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
LOCAL LAW ENFORCEMENT ACT OF 2001
The PRESIDING OFFICER. Under the previous order, the Senate will now
resume consideration of S. 625, which the clerk will report.
The legislative clerk read as follows:
A bill (S. 625) to provide Federal assistance to States and
local jurisdictions to prosecute hate crimes, and for other
purposes.
Pending:
Reid (for Biden) amendment No. 3807, to provide reliable
officers, technology, education, community prosecutors, and
training in our neighborhoods.
The PRESIDING OFFICER. The Senator from Utah is recognized.
Mr. HATCH. Mr. President, let me begin on a point of common ground.
We can--each and every one of us--agree that the actions constituting
hate crimes are wrong in all respects. Let me state, unequivocally,
that as much as we condemn all crimes, a hate crime can be more
sinister than a non-hate crime. And let me state, with equal conviction
and clarity, that I care about stamping out hate crimes as much as any
member of this body. I think everybody know that.
A crime committed not just to harm an individual, but in order to
send a message of hatred to an entire community is appropriately
punished more harshly, or in a different manner, than other crimes.
This is especially true when the targeted community is defined on the
basis of immutable traits. The brutal murders of James Byrd in Jasper,
TX, and Matthew Shepard, in Laramie, WY, among others, remain seared
into our Nation's conscience because of the savagery they suffered
solely because of their attackers' irrational and hateful prejudice.
The worse a criminal's motive, the worse the crime, and a unanimous
Supreme Court recognized as much in upholding Wisconsin's sentencing
enhancement for hate crimes. These same considerations also prompted
the U.S. Sentencing Commission to establish a sentencing guideline that
provides an enhanced sentence for a Federal defendant whose crime was
motivated by hate. These decisions are ones we can all applaud.
Not only are the offenses themselves worse, but hate crimes also 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, at bottom, they are
downright un-American. The melting pot of America is the most
successful multiethnic, multiracial, and multfaith country in all of
recorded history. We should keep our proud heritage of diversity in
mind as we consider the atrocities routinely sanctioned in other
countries committed against persons entirely on the basis of their
racial, ethnic, or religious identity.
So we all should be able to agree that the battle against hate crimes
is and must be America's fight. And despite the often contentious
partisan rhetoric surrounding the issue of Federal hate crimes
legislation, there exists widespread agreement on these fundamental
points: Hate crimes are insidiously harmful, they should be vigorously
prosecuted, and the Federal Government has a role to play in reducing
the incidence of these crimes in our Nation. The dispute, then, centers
not on whether Congress should act in this area, but rather on what
should be done at the national level.
There is no dispute that hate crimes themselves often involve
particularly horrific facts. They rivet our attention and move us to
consider almost any measure that would appear to check such bigotry.
But the proposed legislation introduced by my good friend from
Massachusetts, S. 625, also brings us face to face with the foundations
of our constitutional structure--namely, bedrock principles of
Federalism that, for more than 2 centuries, have vested States with the
primary responsibility for prosecuting violent crimes committed within
their boundaries. And on this point we must be crystal clear: every
hate crime--every bit of criminal conduct that S. 625 proposes to
federalize--is, and always has been, a crime in every jurisdiction
throughout our Nation. The question is not whether these crimes can be
prosecuted, but who should prosecute them under our constitutional
framework.
In other words, S. 625 brings us to a difficult intersection between
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 that we
take. We, who are trusted with the awesome responsibility of making our
Nation's laws, must scrupulously abide by the rule of law in this
process. Congress has a duty to make sure that the legislation it
enacts is constitutional. To shrug off that duty is more than just
negligent; it invites trouble and may even solicit scorn. A Supreme
Court Justice for whom I have the greatest respect, Justice Scalia,
said the following just a few years ago:
My court is fond of saying that acts of Congress come to
the court with a presumption of constitutionality. But if
Congress is going to take the attitude that it will do
anything it can get away with, and let the Supreme Court
worry about the Constitution, perhaps the presumption is
unwarranted.
So, while all of us would agree that hate crimes are a problem with
which Congress must deal, our focus must be on the appropriate and
constitutional means to best accomplish that objective.
In the face of some of the recent hate crimes that have riveted
public attention--and have unfortunately made the name James Byrd
synonymous with Jasper, TX; and the name Matthew Shepard synonymous
with Laramie, WY--I am committed in my view that the Senate must speak
out and act against hate crimes.
I have long been on record with my view that the Federal Government
can play a valuable role in responding to hate crime. In fact, I
sponsored the Hate Crime Statistics Act of 1990. But any Federal
response--to be a meaningful and lasting one--must abide by the
constitutional limitations imposed on Congress, and be cognizant of the
limitations on Congress's enumerated powers that are routinely enforced
by the courts. I was a prime sponsor of that bill, and I am proud that
I was. It was a bill with a lot of controversy at the time. This is
more true today than it would have been even a mere decade ago--ever
since the U.S. Supreme Court revisited the Federalism doctrine in a
string of decisions beginning in 1992.
Having consistently checked the expansion of Federal jurisdiction in
areas traditionally reserved to the States over the past decade, the
Supreme Court has cast grave doubt over the legitimacy of S. 625. I am
not alone in believing that this bill, if passed into law, will be
struck down as an unconstitutional invasion into States' rights. I take
no pleasure in holding this view. In fact, I was the primary co-sponsor
of the Violence Against Women Act of 1994--a law that created Federal
jurisdiction over certain serious acts of violence directed at women.
Senator Biden was a prime sponsor as well and deserves an awful lot of
the credit for that particular bill. I felt strongly about that
legislation, and I certainly was not happy to see the Supreme Court
strike down a portion of that law as unconstitutional. But I respect,
as we all must, the Supreme Court's ruling, and we have a duty to take
its lesson to heart--whether or not we personally like them.
So there is a serious constitutional concern with S. 625. But, in the
frightening climate of terrorism that we live in today, there is a
practical consideration that we also cannot ignore. We must ask
ourselves what role our Federal law enforcement agencies should play in
violent crimes that historically have been prosecuted by State and
local officials. The Federal Bureau of Investigation recently has
committed a large number of its agents to work exclusively on terrorism
cases. The FBI has shifted its focus away from the investigation of
general crimes to the
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protection of our homeland security. In my view, this is a step in the
right direction. I sincerely hope that everybody in this body, and both
bodies, can all agree about that.
Now, more than ever, we can see the line between what is truly
national and what is truly local. The question is not just what can we
do, but rather, how should we allocate our scarce Federal resources?
And what message will we be sending the FBI--who has committed to focus
on terrorism--by passing, as historians will no doubt conclude, the
greatest expansion of Federal power over crimes traditionally
prosecuted by State and local governments?
I have given a great deal of personal thought to this matter in
attempting to create a Federal response to hate crimes that would be as
effective as possible without implicating the very serious concerns
created by S. 625. The amendment I intend to propose before this matter
is over is one that I believe would not only solve the problem
effectively and pragmatically, but also has the virtue of resting on
unquestionably sound constitutional ground.
I care deeply about this issue and am committed to a strong,
workable, practical, and constitutional Federal solution. It is
precisely because of my commitment to this issue that--in the 2 years
since this issue last came to the Senate--I have changed certain
aspects of my amendment to strengthen the Federal Government's role in
the investigation and prosecution of hate crimes. So, while S. 625
remains in precisely the same form as it was when it was offered as an
amendment to the Department of Defense appropriations bill in June
2000--despite the concerns that were raised about its scope and
constitutionality--I have worked to change my proposal to make it more
aggressive and more acceptable to the supporters of S. 625.
There are two main components to my amendment. First, I would propose
creating a meaningful partnership between the Federal Government and
the States in combating hate crimes. My amendment would permit the
Justice Department to assist State and local authorities in
investigating and prosecuting hate crimes by providing Federal manpower
as well as financial assistance. The original version of my amendment
had capped the amount of Federal grants at $100,000 per case, but the
version I propose today removes that ceiling when the need is greater.
My amendment contains a completely new provision that would require the
Attorney General to designate one Federal prosecutor in every district
to act as the Federal liaison for the State and local prosecutions of
hate crimes. That Federal prosecutor, will take an active role in
helping States prosecute hate crimes, from seeking Federal wiretaps to
Federal search warrants. There simply is no reason to believe that
State and local law enforcement officials could not prosecute these
sorts of cases effectively with the type of Federal assistance that my
amendment provides.
My amendment directly remedies the primary concern of those who
advocate broad Federal jurisdiction over hate crimes. Such a broad
power grab is required, the argument goes, because State and local
jurisdictions often lack adequate funding or resources to effectively
prosecute hate crimes. While the record would seem to indicate that
States have effectively shouldered the oar on prosecuting hate crimes,
I certainly accept the fact that such highly publicized prosecutions
might strain a smaller community's resources. My amendment directly
cures that potential problem without displacing States from their
traditional role in law enforcement.
Let us not fail to note that the overwhelming successful record of
local prosecutions of hate crimes--many in jurisdictions where the
death penalty not only was available, but also played a central role in
securing justice--should stand as a testament to the fact that
wholesale Federal intervention is not warranted. There has never been a
showing that State and local law enforcement officials have been
ignoring or neglecting--much less intentionally failing--their duty to
prosecute these heinous offenses. The truth seems quite to the
contrary. State and local authorities effectively investigated
and prosecuted those who perpetrated the reprehensible murders of
Matthew Shepard and James Byrd, Jr. No Amount of federalization--much
less the measures called for in S. 625--would have made these
persecutions any more successful.
This raises a point that I frankly find somewhat puzzling. During the
last floor debates on this issue, Senators Kennedy, Durbin, my good
friend, and Senator Reid from Nevada--good people who I know genuinely
care about this issue--kept bringing up the tragic cases of Matthew
Shepard and James Byrd as reasons to support S. 625. Yet those
offenders were prosecuted efficiently and effectively and, in my view,
appropriately with the death penalty, which was actually the sentence
imposed on two of the killers of James Byrd. That is something that
just couldn't happen under S. 625, which doesn't even provide for the
possibility of the death penalty. So, if anything, the Matthew Shepard
and James Byrd cases stand as testament to the fact that federalization
of hate crimes is both unwarranted and in the case of S. 625, less
effective than current state laws.
In any event, before we take the decidedly broad step of making every
criminal offense motivated by hatred a Federal crime, we ought to equip
States and localities with the resources necessary so that they can
undertake these criminal investigations and prosecutions on their own.
The second major component of my amendment proposes to define the
problem more precisely. Before we swing a broadsword into the
constitutionally sensitive area of States' rights, we ought to consider
carefully whether a scalpel might do the trick. There is a pile of 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 laws, others without. We need to undertake a
comprehensive analysis of that data to determine whether there is, in
fact, a problem in certain States' prosecution of hate crimes.
Some 45 States and the District of Columbia already have enacted hate
crimes laws, and by any measure, they are aggressively and effectively
prosecuting these cases. I am certainly open to being persuaded that
the States are failing to prosecute these crimes. But neither S. 625
nor the record developed in support of this legislation appear to make
such a case. Analyzing the statistics that already exist to see whether
there is a real, verifiable problem with state and local enforcement of
hate crimes is a simple, efficient and responsible first step that we,
as lawmakers, should take before enacting such sweeping legislation.
In sum, we have widespread agreement that the Federal Government must
play a role in our Nation's efforts against hate crimes. The role we
define must also respect the Constitution and the structure of our
government--a structure that, since the inception of our country,
assigns to the States the primary role in criminal law enforcement.
Rather than take a precipitous step that would potentially make every
criminal offense motivated by a hatred a Federal offense, we should
equip States and localities with the resources necessary to undertake
these criminal investigations and prosecutions on their own. At the
same time, we should undertake a comprehensive analysis of the raw data
that has been collected pursuant to the 1990 act.
My amendment is a measured legislative response that would accomplish
the goal of letting no hate crime go unpunished--without bearing any
risk of being struck down as unconstitutional by the Supreme Court. It
is legislation that could and probably would pass into law. We know
that S. 625, as written has no chance of enactment. The House will not
take this amendments. It simply has too many problems. I hope it is not
presented just for political reasons. Instead of having a political
issue, we should take a realistic and responsible step toward
addressing this problem, which would be passing my version of this
legislation.
Mr. President, as we know, on Friday, immediately after calling up S.
625, the hate crimes bill, the Democratic leadership filed for cloture.
This was done for the sole reason of thwarting any meaningful debate on
a bill that seeks to overhaul and expand thoroughly the role the
Federal Government plays in law enforcement.
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I agree wholeheartedly that Senator Kennedy's bill, S. 625, is an
important piece of legislation that deserves consideration in the
Senate. In the past, I too have introduced competing legislation
addressing hate crimes. As someone who has remained as involved in this
issue as Senator Kennedy, at a minimum, I deserve the opportunity to
offer amendments relevant to the discussion of hate crimes and to
improve this bill. I believe my amendments will in fact improve this
bill as it reads currently. Moreover, I believe that a majority of my
colleagues not only want to consider these amendments, I believe they
would approve of my amendments.
Protecting the safety and rights of all Americans is of paramount
concern to all Senators. There are, however, many thoughts as to how to
provide this protection. No one is threatening to filibuster this bill.
My colleagues and I are honestly trying to force a debate on an issue
that affects all Americans. It is curious to me why the Democrats are
trying to prevent a substantive debate on hate crimes from going
forward. By preventing amendments from being offered and considered,
the Democrats are shutting the door on any Republican ideas or
alternatives, however constructive they may be.
All Senators have the right to consider thoughtfully legislation that
will impact significantly how serious crimes are prosecuted in this
country. By filing for closure prematurely, the Democratic leadership
is prohibiting Senators the right to debate and have a vote on issues
that are important to them and the constituents of their States. It is
unconscionable to prevent debate on such an important issue. I ask the
Democratic leadership to rethink this position, and I ask Senators to
oppose cloture and allow us to consider a reasonable amount of
amendments to improve this bill.
I will certainly make every effort to keep the amount of those
amendments very limited so that this particular debate does not have to
go on and on. I hope we will be able to get that done. I noticed S. 625
not only substantially expands current authority over hate crimes, it
adds a number of provisions over what we had at least attempted to do
before.
Under current Federal law, it is important to note that it is
unlawful to injure, intimidate, or interfere with any person because of
his or her race, color, religion or national origin. That is the law
today. That has been upheld as constitutional. If the person is
participating in certain federally protected activities such as
attending school, serving as a juror, traveling in interstate commerce,
using public accommodations, or working, that person is protected
against injury, intimidation, or interference because of race, color,
religion or national origin.
Since 1994, Federal law has required a heavier sentence for persons
convicted of hate crimes. We have already gone a long way to do that.
We will put in the Record before this debate is over some of the
statistics that have been presented as to whether or not hate crimes,
as defined narrowly, are really a significant percentage of crimes that
are committed in this country. My attitude is, if one is committed, it
is a significant percentage, but we have to be practical as well. It
seems to me, since there is no showing--at least there has not been up
to this date--that the State and local law enforcement jurisdictions
are failing to prosecute hate crimes and prosecute them with vigor, it
seems to me we are going too far with S. 625.
I hope our colleagues will pay attention. I think we could really
wind up not doing as much against hate crimes as we could if we would
make a real effort to try to bring both bodies together. I would like
to get this problem solved once and for all, and I would like to do it
in a way the vast majority of us can support because I think the vast
majority of Members of Congress will support a reasonably written,
effective hate crime statute that does not take away the
responsibilities of the State and local governments and law enforcement
people to prosecute these matters.
I yield the floor.
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I say to the distinguished senior Senator
from Utah, this legislation has already passed the House--232 Members
voted for it; in the Senate, 61, almost identical legislation.
The question was raised as to why there was an effort made to move
forward on cloture on this bill. We have lots of things to do. When it
was reported in the Congressional Quarterly last Friday morning that
they, the Republicans, were going to file 40 to 50 amendments just to
slow down the train on this legislation, and they had a wide range of
subject matters on all the amendments they were going to file, none of
which were related to this hate crime legislation, the majority leader
felt we had to move on. That is why the cloture motion was filed.
I also say to my friend, the former chairman of the Judiciary
Committee, someone who is certainly knowledgeable of things legal in
nature, if cloture is invoked, there is still every opportunity, up to
30 hours, to file any germane amendments. I would say if the Senator
wants to improve this legislation, it would have to be with germane
amendments, not nongermane amendments. So I hope we can move along. I
hope cloture is invoked. The majority leader would be happy to work
with the Republicans to come up with legislation they believe is
better. But this is a matter that has already moved in both bodies of
Congress. We should move forward with it.
Amendment No. 3807 Withdrawn
Mr. REID. Mr. President, I withdraw amendment No. 3807.
The PRESIDING OFFICER. The Senator has that right. The amendment is
now withdrawn.
Mr. REID. I thank the Chair.
The PRESIDING OFFICER. The Senator from Arizona.
Mr. KYL. Mr. President, I would like to speak to this legislation.
First of all, I compliment the ranking member on the Judiciary
Committee for the points he made, with which I am in agreement. Recall,
this bill federalizes two new hate crimes, adding gender and sexual
orientation and disability to existing law. It is a far-reaching
proposal.
I am sorry, I cannot accept the excuse that has just been proffered
by the assistant majority leader with respect to why cloture was filed
on this bill some 14 minutes after the bill was brought to the Senate
floor. This is unprecedented. With all due respect, I characterize it
as a gag rule on Senators, unprecedented in the way the Senate
ordinarily, traditionally acts.
As a matter of comity to Members, it is traditional that Members are
allowed to debate and offer amendments to legislation. Only rarely is
cloture filed--ordinarily, after there has been an attempt to
filibuster a bill. The majority then rightly has the opportunity to
bring that debate to a close if enough Members are in agreement to do
so. It is very rare cloture motions would be filed immediately after
bringing the bill to the floor. This does not give Members enough time
to debate the bill or offer amendments and have those amendments voted
upon. The reason proffered by the distinguished Senator from Nevada was
that they had read in a publication that Republican Senators intended
to file some 40 amendments to the bill. I suggest that is not
appropriate as a reason for immediately invoking cloture. To my
knowledge, it has never been done when the Republican majority
introduced bills to the floor.
I remember on one occasion a cloture motion was filed almost
immediately and there was a great hue and cry from the other side, as a
result of which my recollection is the Republican majority, by
unanimous consent, extended the time for debate an additional day.
It is, frankly, a breach of the comity that heretofore has
characterized the opportunity for debate in this body, to file that
cloture motion some 14 minutes after the bill was brought to the
floor--especially because this is such controversial legislation. The
two votes that previously were cast here were like 50 to 49, and I have
forgotten exactly what the other vote was, but this is a highly
contentious issue and one which deserves a great deal of thought and
debate. I, therefore, am very hopeful our colleagues--whether they
agree with the ultimate legislation or not--will agree it is simply
unfair to close off debate and amendments at this very early stage of
the consideration of such important legislation.
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One reason the Senate should not rush to consideration of this bill
is because of the very controversial change that it makes to
criminalize not a defendant's actions alone, but the defendant's
thought process. Think about this for a minute. This legislation
focuses not on the defendant's conduct, or even on his intent--on
whether he acted purposefully or with knowledge of risk. Rather, this
bill criminalizes the defendant's subjective motive. We are moving
perilously close, down the path of creating a penalty for thought
crimes.
This is not as distant as you might think, considering, for example,
the FBI data that is used by advocates of hate crimes laws to justify
this bill. In 1999, they report there was a total of 9,430 hate crimes
in the United States. Of these, only 19 were murders. By far, the
largest category of actual hate crimes against persons, including
property crimes and crimes against society, was the crime of
intimidation. Yet this crime is so vague and so inchoate that the FBI
does not even bother to calculate incidents of intimidation in its
overall crime reports.
What exactly does intimidation mean? Does it simply mean something
that is perceived as offensive by the hearer? Some groups, in fact,
increasingly invoke terms such as ``hostile speech'' or ``climate of
violence'' to describe speech in favor of traditional morality on
social and sexual issues. Would a traditional viewpoint on
homosexuality or transsexualism be hostile speech and thus a hate
crime? It very likely could be under the definitions here.
One organization, the largest organization of women in the country,
the Concerned Women for America, has cited an example of a pastor in
New York whose billboard advertisement with a Bible verse on it was
taken down by city officials who cited hate crimes principles as the
rationale. The CWA also cites a recent incident in San Francisco. The
board of supervisors officially approved a resolution urging local
media not to run an advertisement by a group.
Again, even those who do not agree with the message of traditional
values should at least recognize these groups' right to be heard and to
exercise their first amendment right of speech. With this type of
legislation, we risk criminalizing this speech.
In addition, it is wrong to treat some victims of violent crimes as
more special than others. All victims of violent crime should be equal
in the eye of the law. When such a crime occurs, the police should not
first have to ask, for example, what the victim's race, religion, or
sexual preference is. Nor do the 19 murders classified as hate crimes
in the year 2000 nor the 17 in 1999 provide much justification for the
legislation when more than 15,000 other murders occurred each year--all
crimes under State law. It is not as if we have to add this crime in
order to assure there is punishment for people who commit violence.
Congress should be concerned about all of these victims, not about
just a subset constituting one-tenth of 1 percent of the total. Yet
that is what we spend our time on in this body.
I note that one of the bill's provisions attempts to justify or
provide a constitutional rationale for the bill. I note that section 2
states that Congress has found ``the incidence of violence motivated by
the actual or perceived race, color, religion, national origin, gender,
sexual orientation, or disability of the victim poses a serious
national problem'' and that the ``prominent characteristic of a violent
crime motivated by bias is that it devastates not just the actual
victim and family and friends of the victim, but frequently savages the
community sharing the traits that caused the victim to be selected.''
I would like to focus on that in two respects.
First of all, it says this is a national problem. But I note that not
all national problems are Federal problems. People are murdered every
day in this country. That is a national problem. But States provide the
laws under which people are prosecuted, and it is ordinarily by a local
or county prosecutor. In other words, not every national problem is a
Federal problem.
As I will note later, no less than the Chief Justice of the United
States has warned Congress against federalizing every crime and finding
a Federal solution to every national problem.
But even more important is the suggestion that only certain kinds of
crime victims ought to be of concern to us. It said here that this kind
of crime devastates not just the actual victim but frequently savages--
and I am not exactly sure what the word ``savages'' means--the
community sharing the traits that caused the victim to be selected. I
presume that is the class of victims--people such as the victim.
As the Presiding Officer is well aware, Senator Feinstein and I have
had a constitutional amendment before this body for several years to
grant rights to victims of crime. We have argued all of these years
that victims of violent crime feel themselves frequently savaged by a
system which gives a lot of rights to the defendant but, at best,
ignores their rights, and sometimes actually results in them being
victimized a second time by the judicial system by not getting notice
of key hearings and procedures in which they would have an interest in
attending, or by not even being able to sit in the courtroom sometimes.
This clearly is activity that savages the community that has been
victimized.
Anybody who has been a victim of domestic violence can empathize with
the other victims of domestic violence. I have gone to many meetings at
a lot of centers at which women who have been abused are sitting in a
circle sharing their experiences in order that they be able to cope
with and eventually rise above the problem and to understand that they
themselves are not the cause of the crime that has been perpetrated
against them. They are savaged, all right. They are a group of people
to whom we ought to be paying attention. Yet we can't get the support
in this body to grant them the rights that are at least somewhat equal
to the rights of the accused perpetrators of the crimes upon them. The
numerous constitutional amendments which have granted defendants rights
should at least be equal in the constitutional rights of these victims
of crimes.
I am going to state this in a rather blunt way. It seems to me to be
inconsistent, at best, for people to be very concerned about a couple
of specific groups of people--transsexuals or homosexuals, for
example--that they would believe that other members of their group
would feel savaged when someone else in their group has a crime
perpetrated upon them but we wouldn't extend that same feeling and that
same support and that same kind of action to a vast and much larger
number of people who are victimized by crimes every day and for whom
there are no victim's rights. We don't designate them hate crimes, and
therefore these people have no such rights. I find it discriminatory.
In this Senate body, we never characterize the motives of
legislation. It is a very dangerous thing to do, and I resent it. In no
way do I characterize the motives of anyone offering this particular
amendment. But I ask them to stop and think for a moment about whether
it is fair to single out a very small group of people who have a very
large lobbying voice for special protection as victims of hate crimes
because the group they are a part of feels savaged when they are the
victim of a crime. That is the Federal nexus. That is the basis upon
which the constitutionality of this action rests, and I submit it is
inadequate under our Constitution. But that is the alleged basis. We
will do it there, but we will not give rights to the vast majority of
people who are victims of violent crime in this society.
Do we not believe or do we not understand that they feel savaged as
well? Is their lobbying voice just not as strong? I don't know what it
is. But it is unfair.
Let me turn to two other points before I close.
It is obvious to me from the legislative history--I am not elaborate
at this point but just to note this--that using the word ``gender''
rather than ``sex'' is a very intentional and very specific choice of
words. The bill is intended to take the unprecedented step of making
transsexuals and transvestites a federally protected class. There are
those who think this is a good idea. I cannot imagine what the
Founders--the people who wrote our Constitution--would think of such a
provision. But I believe Congress should accept that not all
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human impulses are necessarily healthy, that not every desire should be
pursued, and that, in any event, these kinds of activities should not
be singled out as constitutionally protected given the large number of
people in this country who have very different points of view of what
is right and wrong. We single out minority action I gather as being
constitutionally protected because we are concerned about what the
majority would do. In so doing, I believe we pervert the language of
the Constitution.
That gets to the next point: the constitutional overreach of this
bill. The bill is almost certainly unconstitutional and beyond
Congress's powers. The first new offense, justified as an exercise of
Congress's 13th amendment power to outlaw the incidents of slavery,
fails because it is not tied to the exercise of civil rights or access
to public accommodations. The second new offense, justified under the
commerce clause, goes too far when it punishes noneconomic violent
crime simply because of the use of a weapon that has allegedly traveled
in interstate commerce.
The bill also unnecessarily contributes to Congress's federalization
of criminal law--a point to which I alluded earlier and on which I said
I would expand. This is a process that places great burdens on our
Federal courts and undermines their role as a forum for addressing
uniquely Federal issues.
I mention the Chief Justice of the United States, Justice Rehnquist.
He has repeatedly warned the Congress against unnecessarily creating
new Federal criminal offenses, especially where the matter has
traditionally been addressed and can be addressed by State courts. The
Chief Justice expounded on this problem in his 1998 Year-End Report of
the Federal Judiciary. I believe this is important enough to quote at
length.
He said:
The number of cases brought to the Federal courts is one of
the most serious problems facing them today. Criminal case
filings in Federal courts rose 15 percent in 1998--nearly
tripling the 5.2 percent increase in 1997. Over the last
decade, Congress has contributed significantly to the
rising caseload by continuing to federalize crimes already
covered by state laws.
The trend to federalize crimes that traditionally have been handled
in state courts not only is taxing the Judiciary's resources and
affecting its budget needs, but it also threatens to change entirely
the nature of our federal system. The pressure in Congress to appear
responsive to every highly publicized societal ill or sensational crime
needs to be balanced with an inquiry into whether states are doing an
adequate job in these particular areas and, ultimately, whether we want
most of our legal relationships decided at the national rather than
local level. Federal courts were not created to adjudicate local
crimes, no matter how sensational or heinous the crimes may be. State
courts do, can, and should handle such problems. While there certainly
are areas in criminal law in which the federal government must act, the
vast majority of localized criminal cases should be decided in the
state courts which are equipped for such matters. This principle was
enunciated by Abraham Lincoln in the 19th century, and Dwight
Eisenhower in the 20th century--matters that can be handled adequately
by the states should be left to them; matters that cannot be so handled
should be undertaken by the federal government.
As is very clear by the language of the statute itself, that is not
the test used for determining whether or not prosecutions will be held
by the Federal Government for these crimes.
The Federal courts are already overwhelmed with existing Federal
offenses, at the same time that this Senate is dragging its feet on
filling the Federal court vacancies that currently exist, or even
holding votes on new judges. Yet here we go creating a whole new set of
Federal offenses for crimes that are already proscribed by State law.
No doubt the Federal judiciary is watching this debate and thinking to
itself, about the Congress, ``there they go again.''
It bears emphasis that the States not only already punish the crimes
we are dealing with here as violent crimes; in addition, 45 States and
the District of Columbia already have laws punishing hate crimes. What
we are doing is creating a double redundancy, a new Federal offense for
hate crimes that are already punished in two different ways at the
State level.
Nor is it fair to accuse the States of inadequately enforcing their
laws in this area. For example, consider the first and third incidents
cited in the committee report for this bill involving murder in
Humboldt, NE, and in Yosemite Park, CA. The committee report relies on
these incidents to supposedly show the need for a new Federal law. But
what these incidents show, instead, is how this law is unnecessary and
redundant. Indeed, it would punish these offenses less severely than
they have been punished under State law.
In the Nebraska crime, prosecutors sought and obtained the death
penalty. In the Yosemite case, they are currently seeking the death
penalty. Yet had either of these offenses instead been prosecuted under
the law envisioned by this bill, the death penalty would not have been
an option. The bill provides for no death penalty, even for the most
brutal murders. And we call this an appropriate reaction to something
we detest so much, something we call a hate crime, that we are willing
to bend the Constitution to make it a new Federal offense.
The death penalty would not have been available under this bill,
either as a deterrent or as leverage to secure a life sentence during
plea bargaining, which is frequently why the death penalty can be
successful. So why do we need a Federal law to provide less punishment
than is already available under State law?
Finally, this bill would explicitly allow the same defendant to be
punished twice for the same crime, based solely on a Federal official's
determination that the State sentence that the defendant is already
serving has somehow left Federal interests ``unvindicated.''
Although the Supreme Court has been willing to ignore such double
prosecutions, Congress, at least, should recognize the unfairness of
allowing a defendant to be tried twice punished twice, by two different
courts, for the same crime.
Since I see my distinguished colleague from Wisconsin in the Chamber,
and because I have such respect for him, for the sense of fairness that
he has exhibited over and over in the Judiciary Committee, on which we
both sit, while I know he is an ardent supporter of the legislation, I
would just ask him, and other colleagues, with whom I have had good
dealings over the years, to acknowledge the fact that it is
inappropriate for us to have debate on this important matter cut off so
soon after the filing of the bill--14 minutes after the bill was
brought to the floor, cloture was invoked--to have very little
opportunity to present amendments and to have the nature of those
amendments restricted.
I could be wrong, but I have been told by staff that even making
these crimes' punishment subject to the death penalty would be ruled
not germane. I cannot believe that. But if that is true, it shows you
how restrictive the cloture rule would be.
I would ask my colleague, and any others who are supporters of this
bill, to consider, on something so important, that we should not be
invoking cloture so soon in the process but should allow those of us
who have constructive suggestions--as in the case of the alternative
mentioned by the Senator from Utah--that those of us who have
amendments, including those which I would like to offer, to have an
opportunity to debate and offer those amendments, and have them acted
upon in the way that has traditionally been done in this body.
If it is the case, as the distinguished assistant majority leader
said, that we have a lot of other business that we need to get to, then
maybe we should not have brought this particular bill at this time. If
it is so important, then we need to have the time to debate it. If it
takes a back seat to issues that are more important, then we should not
have brought it up at this point. I do not think we can have it both
ways.
I would ask my colleagues for the same kind of fairness that has been
offered to them when the majority was held by another party, and to
give us more time to debate and consider amendments on this
legislation, and not to proceed with cloture at such an early time in
the legislative process.
[[Page S5272]]
I thank the Chair and yield the floor.
The PRESIDING OFFICER (Mrs. Carnahan). The Senator from Wisconsin.
Mr. FEINGOLD. Madam President, I thank the Senator from Arizona for
his kind words. I am in the Chamber with regard to another matter, but
I look forward to discussing this issue at a later time.
(The remarks of Mr. Feingold are printed in today's Record under
``Morning Business.'')
Mrs. MURRAY. Madam President, I join my colleagues today to speak in
support of S. 625, the Local Law Enforcement Enhancement Act.
In every corner of our country, communities have been trying to
respond to hate crimes. Despite great gains in equality and civil
rights throughout the last century, too many Americans are subjected to
discrimination, violence, and even death because of who they are. The
Federal Bureau of Investigation has documented over 8,000 incidences of
crime motivated by bias in the United States in 2000. Crimes motivated
by the victim's race, color, religion, sexual orientation, ethnicity,
national origin, disability, or gender. These crimes attack the values
and rights of every American, yet today there is no federal law
stopping these crimes.
Passing the bill before us will give us more tools to fight this
special brand of crime. I am pleased to join with many of my colleagues
as a co-sponsor of this important legislation. The legislation we are
considering would expand the definition of a hate crime and improve
prosecution of those who act out ``their hate'' with violence. If
someone harms any person because of the victim's race, gender,
ethnicity, color, religion, national origin, disability or sexual
orientation, they will be punished.
It is important to note that the prosecutor would still have to
convince a jury beyond a reasonable doubt that the criminal act was
motivated by prejudice, and states would be involved in helping to
determine whether a defendant would be charged with a Federal hate
crime. The bill would also importantly require the FBI to document and
report hate crimes committed against women.
Previously the FBI was only required to collect data from crimes
committed because of a person's race, religion, sexual orientation,
disability and ethnicity. This bill will allow us to know the ``who,''
``what'' and ``why'' so we can work to end these crimes against women.
I know some of my colleagues have argued that the states are doing an
adequate job of handling hate crimes on their own, and I commend the
States for their efforts, but I believe the Federal government has an
important role in this as well. At the Federal level, we already
prosecute many crimes that are motivated by prejudice. We need to
strengthen these Federal hate crimes laws and increase the role of the
federal government in ending this violence.
It wasn't that many years ago that we stood up for equality and
justice by forcing the States and private citizens to end segregation
and discrimination. Now we must do the same for hate crimes against our
citizens.
Madam President, we are a Nation of laws. We are a Nation that
respects the individual and individual liberty. We are a Nation that
rewards hard work. We are a Nation that tolerates and celebrates our
diversity. These are some of our most cherished values. We cannot allow
hate crimes to threaten our fellow citizens and undermine our
democracy. I urge my colleagues to support this important piece of
legislation.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Amendment No. 3824
Mr. HATCH. Madam President, I call up amendment No. 3824 and ask for
its immediate consideration.
The PRESIDING OFFICER. The clerk will report.
The assistant legislative clerk read as follows:
The Senator from Utah [Mr. Hatch] proposes an amendment
numbered 3824.
Mr. HATCH. Madam President, I ask unanimous consent that the reading
of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To amend the penalty section to include the possibility of
the death penalty)
On page 10, strike line 14 and all that follows through
page 11, line 23, and insert the following:
both;
``(B) shall be imprisoned for any term of years or for
life, fined in accordance with this title, or both, if the
offense includes kidnaping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit aggravated
sexual abuse, or an attempt to kill; and
``(C) shall be punished by death or imprisonment for any
term of years or for life, or both, if death results from the
offense.
``(2) Offenses involving actual or perceived religion,
national origin, gender, sexual orientation, or disability.--
``(A) In general.--Whoever, whether or not acting under
color of law, in any circumstance described in subparagraph
(B), willfully causes bodily injury to any person or, through
the use of fire, a firearm, or an explosive or incendiary
device, attempts to cause bodily injury to any person,
because of the actual or perceived religion, national origin,
gender, sexual orientation, or disability of any person--
``(i) shall be imprisoned not more than 10 years, fined in
accordance with this title, or both;
``(ii) shall be imprisoned for any term of years or for
life, fined in accordance with this title, or both, if the
offense includes kidnaping or an attempt to kidnap,
aggravated sexual abuse or an attempt to commit aggravated
sexual abuse, or an attempt to kill; and
``(iii) shall be punished by death or imprisonment for any
term of years or for life, or both, if death results from the
offense.''
Mr. HATCH. Madam President, it remains my view that S. 625 is a
misguided invasion into an area historically and constitutionally
reserved to State and local law enforcement authorities. But let me say
now S. 625 is also flawed on its own merits. One of S. 625's most
egregious shortcomings is that while it purports to send a message the
Federal Government is going to be tough on hate crimes, it actually
threatens to weaken the punishment currently available under many State
laws for the perpetrators of violent hate crimes.
In the successful State and local prosecutions of the killers of
James Byrd, Matthew Shepard, and Billy Jack Gaither, prosecutors and
law enforcement officials in Texas, Wyoming, and Alabama were able to
consider seeking the death penalty. So they did. Let's pause to
consider why they did so.
James Byrd, who was African American, was beaten unconscious, chained
to the back of a pickup truck, and dragged 4 miles down rural roads by
men who had links to a white supremacist group.
Billy Jack Gaither, who was gay, was bludgeoned with an axe handle,
had his throat slit, and then was thrown on a pile of tires and set on
fire by men who cited Gaither's sexual orientation as their motivation
for the killing.
Matthew Shepard, who was gay, was kidnapped, beaten so severely that
his skull was fractured a half dozen times, tied to a fencepost, and
left to die by two men who hated homosexuals.
I have no hesitation in concluding that State and local officials
acted appropriately in seeking the death penalty for these most heinous
of crimes. In the case of James Byrd, they successfully obtained the
death penalty for two of the three defendants. In the case of Matthew
Shepard, the possibility of the death penalty led to an early plea
bargain that resulted in life sentences for both defendants. And in the
case of Billy Jack Gaither, the possibility of the death penalty caused
one of the two defendants to plead guilty and testify for the
Government at the trial, after which he was sentenced to life in
prison. The other killer was eventually convicted and ultimately
sentenced to life in prison after the victim's family requested that
the death penalty not be imposed.
Right now, in a case currently pending in northern California, State
prosecutors are pursuing capital charges against two brothers charged
with murdering a gay couple. And there is more. I could go on. I have
three charts that show just some of the hate crimes cases prosecuted by
State and local prosecutors where the death penalty was used
successfully.
The facts speak for themselves, and I will not go through these cases
one by one. I ask unanimous consent that the crimes noted on these
charts be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[[Page S5273]]
----------------------------------------------------------------------------------------------------------------
Victim Defendant Jurisdiction Facts Penalty
----------------------------------------------------------------------------------------------------------------
James Byrd........... Lawrence Russell Texas................ Beat Byrd (an African- Death Penalty.
Brewer. American)
unconscious, chained
him to the back of a
pickup truck and
dragged him for
miles down rural
roads.
John William King.... Texas................ Beat Byrd (an African- Death Penalty.
American)
unconscious, chained
him to the back of a
pickup truck and
dragged him for
miles down rural
roads..
Shawn Allen Berry.... Texas................ Beat Byrd (an African- Death Penalty
American) Available.
unconscious, chained Sentenced to life
him to the back of a in prison..
pickup truck and
dragged him for
miles down rural
roads..
Roxanne Ellis and Robert Acremant...... Oregon............... Shot Ellis and Abdill Death Penalty.
Michelle Abdill. (a homosexual
couple) to death as
they lay gagged in
the back of his
truck.
Vasudev Patel........ Mark Stroman......... Texas................ Shot Patel (an Indian Death Penalty.
man) after 9/11
because Stroman
thought Patel looked
Middle Eastern.
Billy Jack Gaither... Steven Mullins....... Alabama.............. Bludgeoned Gaither (a Death Penalty
homosexual man) with Available. Pled
an axe handle, slit guilty. Sentenced
his throat, threw to life in prison
him on top of a pile without parole.
of tires and set him
on fire.
Charles Butler Jr.... Alabama.............. Bludgeoned Gaither (a Death Penalty
homosexual man) with Available.
an axe handle, slit Sentenced to life
his throat, threw in prison without
him on top of a pile parole only because
of tires and set him the victim's
on fire. parents requested
that the
prosecution not
seek the death
penalty.
Sasezley Richardson.. Jason Powell......... Indiana.............. Fired 12 shots at Death Penalty
Richardson (an Available. Pled
African-American) in guilty and
an attempt to testified for the
``earn'' a spider- State in order to
web tattoo from the avoid the death
Aryan Brotherhood. penalty. Sentenced
to life in prison
without parole.
Alex Witmer.......... Indiana.............. Drove the truck from Death Penalty
which Powell fired Available. Pled
12 shots at guilty. Sentenced
Richardson (an to 85 years in
African-American) in prison.
an attempt to gain
acceptance into the
Aryan Brotherhood.
Gary Matson and Benjamin Williams.... California........... Shot to death Matson Death Penalty
Winfield Mowder. and Mowder (a Available.
homosexual couple). Prosecution
ongoing.
James Williams....... California........... Shot to death Matson Death Penalty
and Mowder (a Available.
homosexual couple). Prosecution
ongoing.
Matthew Shepard...... Aaron McKinney....... Wyoming.............. Kidnapped Shepard (a Death Penalty
homosexual college Available.
student), beat him Sentenced to two
so severely that his consecutive life
skull was fractured terms. Avoided the
a half dozen times, death penalty by
tied him to a fence agreeing not to
post and left him to appeal the life
die. sentences.
Russell Henderson.... Wyoming.............. Drove the truck into Death Penalty
which Shepard (a Available. Pled
homosexual college guilty in order to
student) was lured, avoid the death
helped tie him to a penalty. Sentenced
fence, and, at the to two consecutive
very least, stood by life terms with no
while Shepard was possibility of
beaten senseless. parole.
----------------------------------------------------------------------------------------------------------------
Mr. HATCH. Madam President, none of these results--none of these
death-penalty-eligible cases shown on these charts--would have been
possible under S. 625--not one of them. This legislation, while
federalizing hate crimes, would not allow capital punishment for those
who murder savagely out of bigotry, prejudice, or hatred. The practical
effect of S. 625 is to substantially weaken existing State law. In
fact, even 18 U.S.C. section 245, the current Federal law that
specifically addresses hate crimes, provides for the death penalty.
It is truly ironic that S. 625's failure to provide for the death
penalty actually represents a decided benefit to those who would commit
these heinous crimes, and it takes away some of law enforcement's most
important pretrial bargaining techniques in order to get one or more
witnesses to these crimes to testify or one or more participants to
testify against the others. Not only would this legislation undermine
existing State laws, but it would substantially weaken their
protections and weaken law enforcement's ability to get to the bottom
of some of these crimes. In consequence, this legislation would be less
likely to deter future hate crimes as well as many State laws on the
books today.
If we as an institution are serious about addressing the problem of
hate crimes, then we must permit for the possibility of the death
penalty as being the appropriate punishment in some of these cases. If
we are to take these sorts of cases away from State and local law
enforcement officials who have been doing such a thorough and effective
job prosecuting them with the possibility of the death penalty, then
our Federal prosecutions must be equally well equipped and prepared to
do as good a job as State and local officials have done.
That is why it would only make sense to support my amendment to
provide for the possibility of the death penalty in appropriate cases
if you support the underlying bill.
I noticed the distinguished Senator from Oregon is here, and I yield
the floor.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. SMITH of Oregon. Madam President, I have every day put into the
Congressional Record the details of a hate crime. These are always
violent, they are always sickening, but they also happen to an American
citizen. They happen sometimes because the victim is black, gay,
disabled, female, or even of Middle Eastern descent. And yet they are
all Americans. So they ought to have the concern of all in the Senate.
I wish to speak again on the Senate floor about another crime. It is
gruesome. It happened just a year ago, and it involved a young Navajo
boy by the name of Fred Martinez, Jr. He had gone to a local rodeo. He
was openly gay; apparently also transgender; again, of Navajo descent.
He was found south of Cortez, CO. He had died after being repeatedly
hit on his head with a rock and left in a small canyon, possibly
suffering for an extended period of time before dying.
Police investigated this murder as a hate crime. The perpetrator of
this crime, who was recently sentenced, allegedly bragged he ``bug-
smashed a fag.''
The victim's mother told the press that she believes her son was
killed because he identified himself as transgender. He occasionally
dressed as a girl. In the mind of his murderer, Fred deserved to die
for such conduct.
I believe the Government's first duty is to defend its citizens
against hatred, against the harms that flow from a hate-filled heart. I
stand in support of the Local Law Enforcement Enhancement Act of 2001
to make sure that should it ever happen again to a Fred Martinez, or
anyone else, it will not go unresponded to by law enforcement at every
level. That is really what this bill is about.
I have listened to my colleagues and their concerns about this
legislation, and I stand to express my disagreement with parts of what
they say.
What is the role of the Federal Government? Some have suggested that
we have no place here, that this is the role of the local and State law
enforcement. I believe the role of the Federal Government is whatever
is necessary to make sure that justice is done, not to overtake local
and State authorities but to help, to contribute, to backstop, to
provide resources, to provide skills that sometimes are uniquely had by
the Federal Government.
I just came from a press conference with Sheriff David O'Malley from
the State of Wyoming. He was the local law enforcement official who
pursued and ultimately helped in the prosecution of the murderers of
Matthew Shepard. It was, frankly, his visit to my office, with the
mother of Matthew Shepard, Judy Shepard, that persuaded me to take
another look at this issue.
Sheriff O'Malley made clear to me that he was a conservative
Republican, but he was for Federal hate crimes legislation because he
could have used the help. The horror of that young man's murder so
galvanized national opinion and the focus of the media that their
little Laramie, WY, law enforcement was overwhelmed by the national
scope of this tragedy. Frankly, they did end up prosecuting it well,
doing it right, convicting these murderers, but his point was the
Federal Government should have been able to show up: We could have used
the help.
In the case of James Byrd in Texas, another hideous case, where a
black man was dragged to death, in that case, because our Federal hate
crimes law already covered issues of race, the Federal Government was
able to show up to work and were exceptionally helpful in the pursuit
and the prosecution of the murderers of James Byrd.
My response then is, what role is there for the Federal Government?
Whatever role is necessary to assure that justice is done. I would like
to see the Federal Government show up to work and express the great
heart and the values of the American people.
[[Page S5274]]
As I listen to some of my colleagues' complaints, I frankly think
they make, on occasion, some very valid points. But their point should
not be against including gays, gender, and the disabled. Their argument
is really against the whole category of hate crimes, this Federal law
we have had for over 30 years. Since 1968, we have had Federal hate
crimes legislation. As I pointed out, it helped in the case of pursuing
the murderers of James Byrd. It did not help in the case of Matthew
Shepard.
My point to them is, why oppose its expansion? Why don't they go
after race, religion, and national origin? If it is good for those
categories, why is it not good for these new categories? That is a
question I simply have not yet had answered.
Questions as to constitutionality have been raised, and there may be
a point I am missing, but this issue has been fully vetted by the U.S.
Supreme Court.
In two cases, RBA v. The City of St. Paul, and Wisconsin v. Mitchell,
these cases clearly demonstrate that a hate crimes statute may consider
bias motivation when that motivation is directly connected to a
defendant's criminal conduct. We are not going after speech. We are not
going after thought. We are going after conduct.
As with any criminal law, in any criminal act there are elements of
the crime. This is yet another element. It is not the crime, but it is
an element in making up the category of the crime. By requiring this
connection to criminal activity, these statutes do not chill protected
speech and do not violate the first amendment. In Wisconsin v.
Mitchell, the Supreme Court made clear that:
The First Amendment does not prohibit the evidentiary use
of speech to establish the elements of a crime or to prove
motive or intent.
So it seems clear to me that one can say whatever they want about
gays, transgenders, and women. They are not prohibited from doing that.
If they act on it, that can be an element in determining whether this
falls under the Federal hate crimes law.
So those who oppose this, I really think their argument is not
towards its expansion but against the law as a category itself. So
their amendment should be to get rid of this as a category. I will not
be voting for that. I would not suggest anyone do that because I
believe our hate crimes law truly does reflect the big heart of the
American people. All crime is hateful. That is a given. We grant that.
But when an attack is made on a Navajo homosexual boy, and he is
thereby a part of a crime which victimizes a much larger community,
what is wrong with our saying, as a people, we want every level of
government--the local, the State and the Federal Government--to help to
pursue and prosecute such crime? I cannot see the problem with it.
I think the argument that is being made is against the whole statute
of hate crimes. It should not be made against gays and lesbians, but it
is.
I would like to draw the attention of my colleagues to the case of
Mark Bangerter from Boise, ID. He was the victim of a brutal attack,
and he wrote the Justice Department and asked for help in pursuing
those who had been hurtful to him.
The Justice Department writes back to him saying:
Dear Mr. Bangerter: This letter is in response to your
report that on April 15, 1998, you were the victim of a
vicious attack by an unidentified individual who apparently
believed that you were homosexual. According to the
information you provided Special Agent Joseph W. Hess, Jr.,
on May 12, 1998, the attack caused you severe facial injuries
and total blindness in your left eye. Your case was
thoroughly discussed with the United States Attorney's office
in Boise, Idaho, in an effort to explore prosecutive
possibilities under existing Federal hate crime laws. I must
regrettably inform you that as a result of those discussions,
it was determined that sexual orientation does not fall
within the listed elements of hate crimes. Therefore, the
Federal Bureau of Investigation lacks the statutory authority
to investigate the attacks against you. I strongly encourage
you to recontact the Boise Police Department and request that
an investigation be fully conducted. Sincerely yours.
Had Mr. Bangerter said, please pursue these criminals because I am
black, they would have been able to do that. He said, please pursue
them because I am gay, and the Federal Government was not able to do
that.
I think that is wrong, and the overwhelming heart of the American
people calls upon us to expand an existing constitutional law and to
cover these people who, because of their minority status, are more
likely victims of crime. Again, if there is a problem with this, it
says to the whole category of crime it should not be a problem just
because we would include these newly identified minority groups in
America; they are certainly deserving of the protection of this law,
the values behind this law, which frankly are denied to them now and
ought not to be any longer.
I am sorry I have to bring our attention to yet another hate crime in
this country, but I suggest it is another reason we ought to act and we
ought to do so quickly.
Senator Hatch raises a valid point. I am loathe to see this
legislation slowed up. I hope the House will take it up. Perhaps the
point he is raising can be resolved then. It is important for this
Senate to act this week on this issue.
I yield the floor.
The PRESIDING OFFICER. The Senator from Utah.
Mr. HATCH. Madam President, 95 percent of all criminal activities are
prosecuted by State and local law enforcement and are prosecuted well.
That is the way it ought to be done. That is what is expected to be
done. Our laws already cover virtually everything, from a civil rights
standpoint, that I mentioned earlier today; that is, race, color,
religion, and national origin. Do I think gay people ought to be
attacked, brutalized, and mistreated? Heavens, no. I believe these
matters have been taken care of at the State and local law enforcement
levels. If they are not, they should be. We should do that. My
amendment that I will offer provides the money, the facilities, and the
ability for the State and local law enforcement people to do it if they
need extra help.
I do not think a case is made that we should give protective status
to anyone other than for race, color, religion, or national origin,
unless we can show that State and local law enforcement is not doing
its job. If they are not doing the job, I am the first to support, the
first to come out and say nobody should be mistreated. The law should
cover everyone.
I made the point, however, that under current law, the Matthew
Shepard case and the James Byrd case--two of the most flagrant examples
of vicious, unforgivable conduct--these cases were handled well by
State and local law enforcement. And, because the prosecutors had the
death penalty to hold over these defendants, these criminals, these
vicious racists, they were able to force some of the witnesses to
cooperate, which helped result in a conviction in one of the trials.
In the case of Matthew Shepard, they obtained a guilty plea
immediately, and thus, preserved judicial resources and saved taxpayers
extensive amounts of money. The guilty plea was entered into to avoid
the death penalty. Having that bargaining tool is a crucial part of law
enforcement.
This bill does not preserve this tool. That is one of the most
glaring defects in this bill.
There are no demonstrated problems with State and local enforcement
of hate crimes.
I am aware of only one time when hearings were held on this
legislation. Those are the ones that I, as chairman, scheduled in 1999.
Deputy Attorney General Eric Holder conceded in his testimony that an
analysis of the hate crimes statistics that have been collected needs
to be conducted to determine whether State and local authorities are
failing to combat hate crimes. Eric Holder testified that the
statistics we have are, to use his term, ``inadequate.''
In fact, there has been never been a showing that state and local law
enforcement officials have been ignoring or neglecting--much less
intentionally failing--their duty to prosecute these heinous offenses.
Because we don't know the real facts on this critical issue, we have
a duty to find out before we pass such sweeping, constitutionally
suspect legislation.
I have only learned of a handful of cases--less than a dozen, some of
which stretch back almost two decades--where state and local officials
are alleged to have failed to investigate or
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prosecute hate crimes. This is far from compelling evidence in a system
of justice where, according to the most recent FBI statistics, citizens
report some 11 million criminal complaints in one year, and state and
local law enforcement officials make some 14 million criminal arrests.
These numbers make another important point. State and local law
enforcement officials process the overwhelming majority of all crimes--
some 95 percent of all criminal activity. There are good reasons for
that. Frankly, they do every bit as good a job as Federal prosecutors.
If we really want to do something about hate crimes, on a Federal
level, we should at the least allow for the death penalty so law
enforcement and prosecutors can obtain immediate cooperation and guilty
pleas, and so defendants will have an incentive to testify against
fellow perpetrators, which results in bringing these matters to an end
quickly without high costs.
In most cases, the death penalty would probably not be imposed, but
the fact that it could be imposed is a very important element in
getting to the bottom of a lot of these cases.
We are talking about a very important set of issues. It is nice to be
emotional; it is nice to talk about how big our hearts should be. I
don't think anyone can claim they have a much larger heart than I have.
I have proven it through all the years. The fact is, there is a reason
our Founding Fathers wanted State and local law problems prosecuted by
State and local prosecutors. They are the people closest to them; they
are the people who understand the neighborhoods; they are the people
who understand the cities; they are the people who understand the
people. They do every bit as good a job as the Federal prosecutors do.
I feel deeply about these matters. I don't want anyone to be hurt by
hate crimes. It is not right. No one should care what their orientation
is. It is just not right. I have to say, if the State and local law
enforcement people were not doing their job, it would be another
matter.
My colleague, Senator Smith of Oregon, cited an incident in Idaho
where the victim asked the FBI to step in and assist in the
prosecution. They said they could not because there was no applicable
federal statute. As I understand it, there is no allegation that the
crime was not prosecuted by State officials. In fact, I understand they
received a conviction in that case.
A lot of this is based on emotions. I would like to address the issue
from a law enforcement basis that makes sense, that really does the
job. That is why I filed this amendment on the death penalty, because
that is one of the great tools Federal and local prosecutors have. The
very fact that they might have to face the death penalty if they roll
the dice and go to the jury, it is one of the great tools that forces
people to come clean. It is also a great tool in causing others to
testify against their co-perpetrators. Take that tool away and I
suggest we will be harming the efforts to try to solve the problems of
hate crimes and criminal activity.
What is wrong with this bill? It goes way beyond what is necessary
and makes almost every case that is now prosecuted at the State and
local level a Federal crime. The fact is that almost all crime involves
hatred. I know the distinguished Senator from Massachusetts tried to
prevent including every rape as a hate crime. But the bill is written
so broadly that it looks to me as though they are making all rape
cases, all cases with sexual allegations, hate crimes, prosecutable by
the Federal Government, even though the State and local prosecutors are
totally capable of prosecuting these cases.
I suggest the absence of a quorum.
Mr. SMITH of Oregon addressed the Chair.
The PRESIDING OFFICER. Will the Senator withhold his request?
Mr. HATCH. Yes.
The PRESIDING OFFICER. The Senator from Oregon.
Mr. SMITH of Oregon. Madam President, I would like to state for the
record my belief that there is not a Senator in the Senate with a
bigger heart or better heart than Orrin Hatch. It is a great privilege
to serve with him. He and I just differ about the appropriateness of
the Federal involvement.
I think the Federal involvement in the statute we proposed will be
minimal, but it will be allowable. It will be rare that the Federal
Government is brought in. But, again, it took a Republican from
Wyoming, Laramie, WY, the sheriff, to come and tell me, just in a
practical way, how helpful it would have been if Federal resources and
involvement had been included in the prosecution of the Matthew Shepard
case.
If in the case of James Byrd it was appropriate, why not in the case
of Matthew Shepard? Moreover, why should we not, at this time in our
Nation's history, say to the gay and lesbian community: We care. We do
have a big heart. We have a way to include you. And this is the barest
of minimums that we ought to do in their behalf.
I think if you are a Navajo gay boy in a lonely Colorado canyon near
a small town where local law enforcement is ill-equipped to assure
justice is done, that it is entirely appropriate for us now to make
available the law enforcement arm and resource and authority of the
U.S. Government.
I do not wish to subvert in any way the local law enforcement that is
the bulwark against crime in this country. Indeed, that is why we call
this the Local Law Enforcement Enhancement Act. We are simply trying to
enhance the pursuit and prosecution and punishment of those who would
commit the most malignant kinds of crime in America.
At a time when this Nation is in a war against terrorism abroad, it
is not inappropriate for us to focus as a Congress upon terrorism
committed at home. What happened to Matthew Shepard was terrorism. I
think it is appropriate for the Federal Government to say it can help
in this instance as well.
So if there are flaws in this bill, let's fix them in conference. But
let's advance this bill because it is the right time and it is the
right way in which to do it.
Again, I deeply respect the motives of the ranking member of the
Judiciary Committee. I know his heart. It is as good a heart as there
is in the place. I know he feels as I do when people are victimized. I
think he is genuinely trying to find the right procedural way to get
the Federal Government involved in helping.
But all you have to do is go to small town America where many of
these horrible acts are committed and ask them if they couldn't use the
helping hand of the Federal Government. I think they will tell you
overwhelmingly: Yes, and it is about time you showed up to help.
So I urge my colleagues to vote for S. 625. Now is the time and it is
about time. I yield the floor.
The PRESIDING OFFICER (Mr. Carper). The Senator from Utah.
Mr. HATCH. I appreciate the remarks of my distinguished friend about
the way he feels about these matters. I feel precisely the way he does.
We are very close friends. I don't think you can find closer friends in
the Senate. I think most people who know me know that I have very deep
feelings that no one should be brutalized in our society, regardless of
what their sexual orientation is.
But this is a big step. If we take this bill without the death
penalty, then we are actually reducing the ability of law enforcement
to go after these people and to get cooperation from other witnesses
and from co-perpetrators.
One of my favorite programs on television happens to be ``Law and
Order.'' If you watch that, you will see the prosecutors regularly use
the death penalty as a tool. While fictional, this television show is
based substantially on what goes on in real life. Most attorneys who
watch the show are pretty impressed with the program. I am one of them.
You will notice in many cases that they will use the potential of being
subjected to the death penalty to get one or more of the perpetrators
to testify against the others. Frankly, it is very effective on this
show and in real life.
I, for one, believe that the death penalty should be used only in the
most narrow of circumstances. But I believe it is a tool that would
certainly help in prosecuting hate crimes. It would certainly help
almost every prosecutor who wants to go after violent criminals who act
in concert. It certainly helps our State and local prosecutors, and it
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would help the Federal prosecutors. But in this particular bill that
has been introduced by my distinguished friend from Massachusetts, the
death penalty is taken out of the hands of Federal prosecutors.
So all we are doing in this intellectual, political exercise, in many
respects, is tying the hands of Federal prosecutors, while immensely
expanding the Federal jurisdiction over virtually all crimes that are
called ``hate'' crimes--in complete disregard for the fact that 95
percent of all prosecutions are prosecuted at the State and local
level, and are prosecuted well.
I know the distinguished Senator from Oregon cited the Bangerter
case. The people who attacked Bangerter and hurt him were prosecuted
and convicted, as I understand. There are bound to be maybe four or
five cases over the last decades that weren't prosecuted. But that
doesn't justify giving this wholesale expansion of state authority to
the Federal prosecutors.
One of the things I personally chatted about with the current Chief
Justice and other Justices on the Court--one of the things I personally
discussed with them--is their concern about the continual increase of
the number of statutory Federal crimes when there is no evidence that
the State and local prosecutors are not doing their job. The amendment
I intend to file at a later time, which will be a substitute for the
bill of the distinguished Senator from Massachusetts, provides for the
tools and the help for those small communities, such as the one in
Colorado that distinguished Senator from Oregon referred, to prosecute
these crimes.
Although there is no evidence that they can't do it or that they
aren't doing it, my amendment makes sure that hate crimes will and can
be prosecuted by providing resources.
If my friend from Oregon is truly only concerned with enhancing local
law enforcement--this bill, ironically, is called the Local Law
Enforcement Enhancement Act. This bill takes away the authority of
local law enforcement and puts it in the hands of Federal prosecutors
when there is no evidence they need to do that. Nor is there any
indication that we should turn over this kind of responsibility to
Federal prosecutors, nor that they should have the right to come in and
overrule local prosecutors in the process who are doing the job.
If my colleague from Oregon is truly only concerned with enhancement
of local law enforcement, I hope he will vote for my substitute which
will be offered later in this debate.
That is what my substitute will do--enhance and not supplant local
State prosecutors. I will discuss that in detail later, and hopefully
we will be able to bring it up and get a time agreement whereby we have
a limited number of amendments. And that will certainly be one of them.
If we win, we win. If we lose, we lose. But at least we will have
debated it, and we will have had a chance to improve this bill by leaps
and bounds.
During our last debate on hate crimes, Senator Kennedy criticized me
for arguing against the federalization of hate crimes when I have
supported providing Federal jurisdiction in other, completely unrelated
areas, such as computer fraud or class actions. This is the classic
apples versus oranges argument.
In those other cases, there has never been any serious question that
the proposed Federal jurisdiction would be constitutional. I consider
every piece of legislation on its own merits.
The distinguished Senator from Massachusetts, a noted opponent of the
death penalty, nonetheless has voted in the past for legislation that
provides for the death penalty. My conviction that S. 625 is
unconstitutional is in no way inconsistent or contradictory.
Whether or not a State may have a specific law prohibiting hate
crimes does not mean that they are failing to vigorously prosecute
them. Every hate crime, every bit of criminal conduct that S. 625
proposes to federalize is and always has been a crime in every
jurisdiction throughout our Nation, crimes which have been effectively
prosecuted by State and local prosecutors.
When we challenged the Clinton administration and the then Deputy
Attorney General, Eric Holder, to come up with any examples where local
prosecutors were not taking care of these problems, they could not do
it.
In fact, prosecutors sometimes do not like to charge a crime as a
hate crime--especially when the penalties are no different because they
have to prove an extra element: The motive of the defendant to commit
the crime based on bias. That is an extra element that would have to be
proven, and it makes it tough to get convictions in some of these
cases.
It is no answer to say that a State may not have a hate crime or may
not be charging enough cases under a specific hate crime law. The real
question is, Are States failing to prosecute hate crimes? The answer is
a resounding no.
I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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