[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

[[Page S5268]]

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.

[[Page S5269]]

  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.

[[Page S5270]]

  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

[[Page S5271]]

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

[[Page S5275]]

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

[[Page S5276]]

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.

                          ____________________