[Congressional Record Volume 155, Number 64 (Wednesday, April 29, 2009)]
[Extensions of Remarks]
[Pages E1015-E1017]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




        LOCAL LAW ENFORCEMENT HATE CRIMES PREVENTION ACT OF 2009

                                 ______
                                 

                               speech of

                        HON. SHEILA JACKSON-LEE

                                of texas

                    in the house of representatives

                       Wednesday, April 29, 2009

  Ms. JACKSON-LEE of Texas. Mr. Speaker, I rise today in strong support 
of H.R. 1913, the Local Law Enforcement Hate Crimes Prevention Act of 
2009. I would like to thank Chairman Conyers of the House Judiciary 
Committee for his leadership in bringing this timely legislation to the 
floor. H.R. 1913 will provide assistance to state and local law 
enforcement and amend federal law to streamline the investigation and 
prosecution of hate crimes. The key element of the bill is its 
expansion of federal jurisdiction to cover crimes motivated by bias 
against a victim's perceived sexual orientation, gender, gender 
identity or disability. This legislation would make tremendous strides 
in garnering the civil and human rights of all Americans. Its passage 
would secure the equal protection of all Americans under the law. It is 
a landmark and long overdue piece of legislation.
  This is an important bill and I have introduced similar legislation 
in this and prior Congresses. While I support this bill and urge my 
colleagues to support this bill I am disappointed that the bill did not 
include my amendment which I offered last Congress.


                   MY AMENDMENT LANGUAGE IN H.R. 1592

  Last Congress, I offered an amendment to H.R. 1592, the legislation 
that was introduced last term. My amendment was accepted by unanimous 
consent by the members of the Judiciary Committee. Specifically, my 
amendment required ``the United States Sentencing Commission shall 
study the issue of adult recruitment of juveniles to commit hate crimes 
and shall report such findings back to the Congress within 180 days.'' 
If this language was included in the present bill, it would only serve 
to strengthen it and make it better. The amendment language was 
intended to gather information on adults that solicit and use youth in 
the commission of hate crimes. This issue arises with respect to hate 
groups such as the Skinheads, Neo-Nazis, KKK, and other similar type 
groups.
  H.R. 1913 is legislation aimed at combating hate crimes. Because the 
bill addresses hate crimes, it is necessary to define the criminal 
actions that constitute a hate crime in the first instance. The 
definition is straightforward. Hate crimes involve the purposeful 
selection of victims for violence and intimidation based upon their 
perceived attributes. Such targeting for violence removes these actions 
from the protected area of free expression of belief and speech as 
enshrined in the First Amendment to the United States Constitution. The 
crimes are investigated and prosecuted at both the Federal and State 
and local level, depending upon the facts of the case and the needs of 
the investigation.
  For those individuals that will ask why this law is necessary, let me 
remind of a few incidents that have occurred in recent memory that 
demonstrate that this bill is indeed necessary.
  Texas' violent history dates to the late 19th century when it was 
among the South's most lynch-prone states. At least 355 people, most of 
them blacks, died in Texas mob violence between 1889 and 1918.
  Laws outlawing mob and less lethal hate crimes have since been 
passed, but incidents with possible racial components have continued to 
occur--even in Jasper, a city with a black mayor and a population that 
is 45 percent African-American.
  In Texas, Austin came in fourth among cities in the number of hate 
crimes reported in 2006, according to a FBI compilation that canvassed 
agencies representing 85 percent of the nation's population. Documented 
are 7,722 criminal incidents involving 9,080 offenses resulting from 
bias against race, religion, sexual orientation, ethnicity/national 
origin, or physical or mental disability. Of 5,449 ``crimes against 
persons'', intimidation accounted for 46 percent of hate crimes, simple 
assault 32 percent, and aggravated assault 21.6 percent. Three murders 
and six rapes were reported. The report lists offenders as 58.6 percent 
white, 20.6 percent black, 12.9 percent race unknown, and the rest as 
other races.


                               JAMES BYRD

  Let me remind you of James Byrd. On June 7, 1998, Byrd, 49, accepted 
a ride from three men named Shawn Allen Berry, Lawrence Russell Brewer, 
and John William King. He had already known one of them. Instead of 
taking him home, the three men beat Byrd behind a convenience store, 
chained him by the ankles to their pickup truck, stripped the man 
naked, and dragged him for three miles. Although Lawrence Russell 
Brewer said that Byrd's throat had been slashed before he was dragged, 
forensic evidence suggests that Byrd had been attempting to keep his 
head up, and an autopsy suggested that Byrd was alive for much of the 
dragging and died after his right arm and head were severed when his 
body hit a culvert. His body had caught a sewage drain on the side of 
the road resulting in Byrd's decapitation.
  King, Berry, and Brewer dumped their victim's mutilated remains in 
the town's black cemetery, and then went to a barbecue. A wrench 
inscribed with ``Berry'' was found within the area along with a lighter 
that had ``Possum'' written on it, which was King's prison nickname.
  The next morning, Byrd's limbs were scattered across a very little-
used road. The police found 75 places littered with Byrd's remains. 
State law enforcement officials along with Jasper's District Attorney 
Guy James Gray and Assistant Pat Hardy determined that since King and 
Brewer were well-known white supremacists, the murder was a hate crime, 
and decided to bring in the FBI less than 24 hours after the discovery 
of Byrd's remains. One of Byrd's murderers, John King, had a tattoo 
depicting a black man hanging from a tree, and other tattoos such as 
Nazi symbols, the words ``Aryan Pride,'' and the patch for the 
Confederate Knights of America, a gang of white supremacist inmates. In 
a jailhouse letter to Brewer which was intercepted by jail officials, 
King expressed pride in the crime and said he realized he might have to 
die for committing it. ``Regardless of the outcome of this, we have 
made history. Death before dishonor. Sieg Heil!'', King wrote.
  An officer investigating the case also testified that witnesses said 
King referenced The Turner Diaries after beating Byrd.
  Brewer and King were sentenced to death. Berry received life in 
prison.


                            The perpetrators

  John King--accused of beating Byrd with a bat and then dragging him 
behind a truck until he died. King had previously claimed to have been 
gang-raped in prison by black prisoners and, although he had no 
previous record of racism, had joined a white-supremacist prison gang, 
allegedly for self-protection. The testimony phase of his trial started 
in Jasper, Texas on February 16, 1999. He was found guilty of 
kidnapping and murder on February 23 and was sentenced to death on 
February 25.

  Lawrence Russell Brewer--another white supremacist convicted of 
murdering Byrd. Prior to the Byrd murder, Brewer had served a prison 
sentence for drug possession and burglary, and he was paroled in 1991. 
After violating the parole in 1994, he was sent back to prison. 
According to his court testimony, he joined a white supremacist gang 
with King in order to safeguard himself from other prisoners. A state 
psychiatrist testified that Brewer did not appear repentant for his 
crimes. In the end, Brewer was also sentenced to death.
  Shawn Allen Berry--The driver of the truck, Berry was the most 
difficult to convict of the three defendants because there was a lack 
of evidence to suggest that he himself was a racist. He had also 
claimed that his two companions were entirely responsible for the 
crime. Brewer testified that it was Berry who cut Byrd's throat before 
he was tied to the truck, but the jury decided that there was little 
evidence to indicate this. As a result, Berry was spared the death 
penalty and given a life sentence in prison.


                            MATTHEW SHEPARD

  Matthew Wayne Shepard was a student at the University of Wyoming who 
was tortured and subsequently murdered near Laramie,

[[Page E1016]]

Wyoming. He was attacked on the night of October 6-October 7, 1998 and 
died at Poudre Valley Hospital in Colorado, on October 12, from severe 
head injuries.
  During the trial, witnesses stated that Shepard was targeted because 
he was gay. His murder brought national as well as international 
attention to the issue of hate crime legislation at the state and 
federal levels.
  Russell Arthur Henderson pleaded guilty to felony murder and 
kidnapping, allowing him to avoid the death penalty. Aaron James 
McKinney was convicted of felony murder and kidnapping. Henderson is 
currently serving two consecutive life sentences and McKinney is 
serving the same but without the possibility of parole.
  Matthew Shepard, oldest son of Dennis Shepard and Judy Shepard, was 
born in Casper, Wyoming, on December 1, 1976. Shortly after midnight on 
October 7, 1998, 21-year-old Shepard met McKinney and Henderson in a 
bar. McKinney and Henderson offered Shepard a ride in their car. 
Subsequently, Shepard was robbed, pistol whipped, tortured, tied to a 
fence in a remote, rural area, and left to die. McKinney and Henderson 
also found out his address and intended to rob his home. Still tied to 
the fence, Shepard was discovered eighteen hours later by Aaron 
Kreifels, who at first thought that Shepard was a scarecrow. At the 
time of discovery, Shepard was still alive, but in a coma.
  Shepard suffered a fracture from the back of his head to the front of 
his right ear. He had severe brain stem damage, which affected his 
body's ability to regulate heart rate, body temperature and other vital 
signs. There were also about a dozen small lacerations around his head, 
face and neck. His injuries were deemed too severe for doctors to 
operate. Shepard never regained consciousness and remained on full life 
support. As he lay in intensive care, candlelight vigils were held by 
the people of Laramie.
  He was pronounced dead at 12:53 A.M. on October 12, 1998 at Poudre 
Valley Hospital in Fort Collins. Police arrested McKinney and Henderson 
shortly thereafter, finding the bloody gun as well as the victim's 
shoes and wallet in their truck.
  The two men had attempted to get their girlfriends to provide alibis. 
In court the defendants used varying rationales to defend their 
actions. They attempted to use the ``gay panic defense'', arguing that 
they were driven to temporary insanity by alleged sexual advances by 
Shepard. At another point they stated that they had only wanted to rob 
Shepard and never intended to kill him.
  The prosecutor in the case charged that McKinney and Henderson 
pretended to be gay in order to gain Shepard's trust to rob him. During 
the trial, Chastity Pasley and Kristen Price (the pair's then-
girlfriends) testified under oath that Henderson and McKinney both 
plotted beforehand to rob a gay man. McKinney and Henderson then went 
to the Fireside Lounge and selected Shepard as their target. McKinney 
alleged that Shepard asked them for a ride home. After befriending him, 
they took him to a remote area of Laramie where they robbed him, beat 
him severely (media reports often contained the graphic account of the 
pistol whipping and his smashed skull), and tied him to a fence with a 
rope from McKinney's truck. Shepard begged for his life. Both 
girlfriends also testified that neither McKinney nor Henderson was 
under the influence of drugs at the time. The beating was so severe 
that the only areas on Shepard's face that were not covered in blood 
were those where his tears had washed the blood stains away.
  Henderson pleaded guilty on April 5, 1999, and agreed to testify 
against McKinney to avoid the death penalty; he received two 
consecutive life sentences. The jury in McKinney's trial found him 
guilty of felony murder. As it began to deliberate on the death 
penalty, Shepard's parents brokered a deal, resulting in McKinney 
receiving two consecutive life terms without the possibility of parole.
  Henderson and McKinney were incarcerated in the Wyoming State 
Penitentiary in Rawlins but were transferred to other prisons due to 
overcrowding.
  Wyoming did not have State hate crimes legislation.


                              LOYAL GARNER

  On Christmas Day 1987, Loyal Garner, a Florien, LA., father of six, 
was arrested for drunken driving. Garner protested that he was sober, 
and asked for field sobriety and breathalyzer tests, but police took 
him to the county jail in Hemphill.
  Garner asked to be allowed to telephone his wife. Instead, he was 
taken to the jail detox room and bludgeoned.
  In 1990, Hemphill Police Chief Thomas Ladner and two county deputies, 
Billy Ray Horton and James M. Hyden, were convicted on state murder 
charges and sentenced to prison. Horton's conviction was later 
overturned.


                            KENNETH SIMPSON

  In spring 1988, Kenneth Simpson, a 30-year-old black man arrested for 
the theft of a fountain pen, died in his Cleveland jail cell after 
being beaten.
  Half the city police force was suspended as a result, but later 
returned to their jobs after being acquitted. However, Police Chief 
Harley Lovings remained under public pressure and resigned the 
following year.
  The pen later was found atop a soft drink machine in the police 
station lobby.


                           TROY LEE STARLING

  In August 1987, Troy Lee Starling, 24, of Mount Enterprise was 
fatally shot in the neck by a state highway trooper after a highspeed 
chase in Rusk County.
  Though the trooper was cleared by a grand jury, Starling's family 
filed a civil rights lawsuit against the officer.
  Not all incidents involved bloodshed, but still revealed a sordid 
side of East Texas culture.
  Illustrative was the hostility faced by three black families who 
moved into an all-white public housing project in Vidor in 1994.
  The families were part of the third effort to integrate the project. 
They moved in only after then-Housing and Urban Development Secretary 
Henry Cisneros allocated $3 million to upgrade security.
  But residents were soon frightened by death threats and the obvious 
patrols of Ku Klux Klan members through the projects displaying high-
powered weapons.
  The FBI later investigated alleged Klan death plots against William 
Hale, director of the Texas Commission on Human Rights, and Attorney 
General Dan Morales. Hale's group had sued the Klan, accusing it of 
making threats against those trying to integrate the housing project.
  Still, Joe Roy, head of the intelligence project of the Southern 
Poverty Law Center in Montgomery, Ala., suggested such crimes, though 
stereotypical of the South, no longer are limited to one region.
  ``I think this is a stark reminder, this case in Texas, of what can 
happen in this country,'' he said. ``Education is not the sole answer, 
but it's one of the cornerstones of correcting it.''
  The tension between the races is fueled by competition between 
economically marginal groups, Roy said.
  ``This episode is a horrendous example of the rage that is out 
there.''


                     OTHER HIGH PROFILE TEXAS CASES

  Vidor, 1994: Civil rights groups sue the Ku Klux Klan, accusing the 
group of making threats to stop the integration of an all-white housing 
project.
  Cleveland, 1988: Kenneth Simpson, a black man arrested for stealing 
an ink pen, dies in his jail cell after struggling with white officers, 
who are eventually cleared in the death. The police chief resigns under 
pressure the next year.
  Hemphill, 1987: Loyal Garner, a black Louisiana truck driver, is 
beaten to death in the Sabine County jail. Hemphill's police chief and 
two county deputies are eventually convicted of murder, although one 
deputy's conviction is overturned.
  Mount Enterprise, 1987: Troy Lee Starling, a 24-year-old black man, 
is fatally shot in the neck by a state trooper after a high-speed chase 
in Rusk County. The trooper is cleared but Starling's family files a 
civil rights suit.
  In December 2005, Chris McKee was beaten by two men. McKee, who is 
gay, said his assailants had followed him after seeing him kiss another 
man, and anti-gay slurs were audible on a 911 call he made. His 
assailants were prosecuted under the State hate crimes legislation but 
they were acquitted.
  In May 2006, Joshua Aaron Abbot, now 23, was acquitted in the 2005 
death of 40-year-old David Wayne Morrison, a gay Denton resident who 
was HIV-positive. Abbott stabbed Morrison more than 20 times in the 
face, neck and chest with a pocketknife.
  Abbott, who is straight, had gone to Morrison's residence for unknown 
reasons, and the pair ended up alone in Morrison's bedroom. At trial, 
Abbot claimed Morrison tried to rape him, and the jury ruled the 
defendant acted in self-defense. The prosecutors failed to prosecute 
the case as a hate crime because it was not clear that Morrison's 
sexual orientation was the sole motivating factor. However, the 
prosecutor admitted that Morrison's sexual orientation and HIV-positive 
status was key.
  Since Texas State hate crimes legislation was passed in 2001, there 
have been few convictions. In 2007, there were only eight convictions.
  These cases provide stark evidence that this bill is needed to 
federalize hate crimes. These crimes are still perpetrated.
  Opponents will argue that this bill abrogates constitutional rights 
of Freedom of Speech or other First Amendment guarantees under the 
Constitution. These arguments have no merit.
  First, all speech is not protected speech. For example, one does not 
have the right to scream ``Fire!'' in a crowded movie theatre.
  Second, nothing in this bill prevents a person from exercising their 
fundamental rights or their First Amendment right to free speech. The 
actionable crime here is crimes that cause bodily injury.

[[Page E1017]]

  Third, the bill clarifies that neither this Act, nor the amendments 
made by it may be construed to prohibit any expressive conduct 
protected from legal prohibition, or any activities protected by the 
free speech or free exercise clauses of, the First Amendment of the 
United States Constitution. The legislation does not punish, nor 
prohibit in any way, name-calling, verbal abuse, or even expressions of 
hatred toward any group, even if such statements amount to hate speech. 
Because it covers only violent actions that result in death or bodily 
injury nothing in this legislation prohibits lawful expression of 
deeply held religious beliefs. Thus, clergy and other religious persons 
are not prohibited from decrying any acts, lifestyles, or 
characteristics that they deem repugnant or contrary to their beliefs. 
This speech is not actionable under this bill and is in no way 
proscribed.
  The bill specifically provides at Section 8, in its Rule of 
Construction, that ``Nothing in this Act, or the amendments made by 
this Act, shall be construed to prohibit any expressive conduct 
protected from legal prohibition by, or any activities protected by the 
Constitution.'' Thus, the plain language of the bill makes clear that 
clergy or others exercising their First Amendment right to speech or 
expression will not be penalized by this law. Words or conduct that 
does not result in bodily injury is not actionable under this bill.
  This legislation is needed because hate crimes have been seriously 
underreported. FBI statistics have only documented more than 118,000 
hate crimes since 1991. In 2007, statistics demonstrated 7,624 bias-
motivated criminal incidents, and police agencies identified 9,535 
victims arising from 9,006 separate criminal offenses. Racially-
motivated bias accounted for approximately half (50.8 percent) of all 
incidents; religious bias accounted for 1,400 incidents (18.4 percent); 
sexual orientation bias accounted for 1,265 incidents (16.6 percent); 
and ethnicity/national origin accounted for 1,007 incidents (13.2 
percent).
  H.R. 1913 will address two serious deficiencies in the Federal civil 
rights crimes, in which a limited set of hate crimes committed on the 
basis of race, color, religion, or national origin are prohibited. The 
principal federal hate crimes statutes are 18 U.S.C. sec. 245 and 42 
U.S.C. sec. 3631, this bill expands the application of hate crimes 
legislation.
  In the last forty years, limitations in section 245 have become 
apparent and needed to be addressed. For example, the existing statute 
requires the government not only to prove that the defendant committed 
an offense because of the victim's race, color, religion, or national 
origin, but also because of the victim's participation in one of sex 
narrowly defined protected activities. These activities related to 
enrolling/attending schools, participating in or enjoying a service, 
program, facility, or activity administered or provided by a state or 
local government, applying for or enjoying employment, serving in a 
state court as a juror, travelling in or using a facility of interstate 
commerce, and enjoying the goods or services of certain places of 
public accommodation. This bill extends the application of hate crimes 
beyond these narrow and limited situations.

  The present bill extends hate crimes in another important manner. The 
existing statute provides no coverage for violent hate crimes committed 
because of the victim's perceived sexual orientation, gender, gender 
identity or disability. H.R. 1913 covers these statuses.
  When federal jurisdiction has existed in the limited hate crime 
contexts authorized under 18 U.S.C. sec. 245(b), the federal 
government's resources, forensic expertise, and experience in the 
identification and proof of hate-based motivations has provided an 
invaluable investigative complement to the familiarity of investigators 
with the local community, people and customs. The limitations of 
section 245 have limited the opportunity for such collaboration in many 
incidents of violence.
  As I mentioned out the outset, I understand the urgency and 
importance of passing this bill. I would however like to bring up two 
issues that I would like considered, and that I would like to work with 
leadership to ensure is included, in conference.
  First, the bill adds a certification requirement that is not 
currently found in section. Specifically, it requires a written 
certification from the Attorney General, the Deputy Attorney General, 
the Associate Attorney General, or any Assistant Attorney General that 
the person has reason to believe that a hate crime has occurred and the 
person has consulted with local and state law enforcement.
  This imposes yet another burden upon the Department of Justice and 
might infringe upon its right to bring and try hate crimes. I do not 
see any compelling reason for changing the existing law and adding this 
additional burden.
  Similarly, with respect to the Rule of Evidence in section 7(d) of 
this legislation, it provides the following:
  ``In a prosecution for an offense under this section, evidence of 
expression or associations of the defendant may not be introduced as 
substantive evidence at trial, unless the evidence specifically relates 
to that offense. However, nothing in this section affects the rules of 
evidence governing impeachment of a witness.''
  Thus, this new rule of evidence alters the relevance standard that 
already exists under the Federal Rules of Evidence. It would seem 
appropriate to use evidence, albeit circumstantial insofar as it is 
relevant. For example, consider the following hypothetical that a hate 
crime is perpetrated but under the current construction of section 
7(d), it would be inadmissible to proffer evidence that the defendant 
collected racist magazine or paraphernalia unless such paraphernalia 
was directly used in the crime or is entered for purposes of 
impeachment. It defies reason that the existence of such paraphernalia 
is relevant and should be admissible to prove that a crime was racially 
motivated. Therefore, I would excise the language in section 7(d). It 
adds restrictions to the rules of evidence that have no place in the 
inquiry.
  Hate crimes are real. The bodily injury, loss of life, and havoc that 
their perpetration wreaks on an individual, a family, community, and 
the country is wholly unacceptable. I urge my colleagues to support an 
end to such hate crimes and support this bill. Its passage would make 
America a fuller, freer and more equal society that all accorded equal 
protection under the laws of the United States.

                          ____________________