[Congressional Record Volume 155, Number 156 (Monday, October 26, 2009)]
[Senate]
[Pages S10725-S10727]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              HATE CRIMES

  Mr. SPECTER. Madam President, I have sought recognition, briefly, to 
talk about the legislation on hate crimes, which was passed last 
Thursday as part of the Defense authorization bill, and to note the 
very different attitude which is present today than was present in 
1997, when Senator Kennedy first took the lead in introducing hate 
crimes legislation, which I cosponsored with him at that time as well 
as Senators John Chaffee, James Jeffords and Alfonse D'Amato, the only 
Republicans who appeared on the bill at that time.
  There was some substantial opposition, very little appreciation of 
the effort to expand hate crimes to include sexual orientation and also 
disability. Even the Washington Post had an editorial on November 17 
raising questions about the wisdom of the legislation which we had 
introduced.
  One of the concerns raised by the Post was that:

       A victim of a biased-motivated stabbing is no more dead 
     than someone stabbed during a mugging.

  It seems to me, that missed the point. But even the Washington Post, 
at that time, challenged the rationale for expanding hate crimes. The 
Post also raised a comment about the disturbing aspect of the 
legislation is the lower threshold for Federal involvement, in any 
case.
  Having had some experience as a district attorney, and knowing the 
practices of district attorneys having jurisdiction over a county--for 
example, my job was both the city and county of Philadelphia--that DAs 
do not have, in some areas, a very broad perspective.
  Where the climate for a district attorney, an elected position, is 
not conducive to pursuing someone who has undertaken something which 
has a racial bias, a racial motivation or a motivation for a difference 
in sexual orientation, the cases are not brought.
  That is precisely the kind of an area which warrants hate crimes 
legislation on the Federal level. But it has been a long battle, and 
the issue went through quite a few conferences. Thanks to the 
leadership of our distinguished majority leader, Senator Harry Reid, we 
have persisted. Senator Reid has kept this issue front and center in 
the Senate, and Senator Leahy, as chairman of the Judiciary Committee, 
and I in the past, in 2005-2006 in the 109th Congress, were pushing 
ahead on hate crimes legislation.
  Senator Levin, as chairman of the Armed Services Committee, is to be 
commended for fighting it through and finally getting it through the 
conference. So it is quite a landmark move that the Congress has 
finally acted on it as we did last Thursday. There is a recognition 
that the Post was off base when it said:

       A victim of bias-motivated stabbing is no more dead than 
     someone stabbed during a mugging.

  That suggests a misunderstanding of hate crimes, as Senator Kennedy 
and I wrote in an op-ed that:

       Random street crimes don't provoke riots; hate crimes can 
     and sometimes do.

  A hate crime is broader than simply an attack against a victim, 
against the African American who was dragged through the streets in a 
small town in Texas which gave rise to the impetus for hate crimes 
legislation or the brutal attack on Matthew Shepherd in

[[Page S10726]]

Wyoming. So this legislation is highly significant.
  I ask unanimous consent that the text of the Washington Post 
editorial of November 17, 1997, and the reply op-ed piece by Senator 
Kennedy and myself, dated December 1, 1997, be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                       The ``Hate Crime'' Problem

               [From the Washington Post, Nov. 17, 1997]

       Bill Clinton, at a White House conference last week, 
     declared his support for a proposal by Sens. Edward Kennedy 
     and Arlen Specter to broaden federal jurisdiction over that 
     category of violence dubbed ``hate crime.'' Federal law 
     already permits judges to lengthen the sentences of 
     defendants convicted of such crimes, defined as those in 
     which a victim is targeted because of a particular identity. 
     The Hate Crimes Prevention Act would go a step further than 
     merely toughening sentences; it would significantly widen the 
     Justice Department's latitude to prosecute local violent 
     crimes that were motivated by bigotry. The bill is a can of 
     worms.
       The proposal is crafted as an amendment to a civil rights 
     statute that makes it a crime to interfere violently with 
     anyone's exercise of certain federally protected activities 
     because of that person's race, religion or ethnicity. This 
     law sometimes has enabled the federal government to prosecute 
     violent civil rights abuses when state authorities were 
     unable or unwilling to do so. The new proposal would add a 
     section explicitly including sexual preference, gender and 
     disability status within the law and allowing the government 
     to prosecute bias-motivated attacks even when the victims are 
     not engaged in a federally protected activity. It would open 
     the door, proponents concede, for certain rapes and domestic 
     violence cases to be prosecuted federally as hate crimes.
       Folding sexual preference into the protection of the 
     existing statute is clearly a good idea. The civil rights of 
     gays and lesbians, after all, are sometimes targeted 
     violently, and the federal government's anachronistic lack of 
     authority to punish perpetrators of these assaults should be 
     corrected. The disturbing aspect of the legislation is the 
     lower threshold for federal involvement in any case. The 
     government has an abiding interest in preventing attacks on 
     the civil rights of its citizens. On the other hand, rape, 
     murder and assault--no matter what prejudice motivates the 
     perpetrator--are presumptively local matters in which the 
     federal government should intervene only when it has a 
     pressing interest. The fact that hatred lurks behind a 
     violent incident is not, in our view, an adequate federal 
     interest. The other conditions for federal involvement 
     outlined in the proposal could prove too malleable to the 
     Justice Department's desire to involve itself in a given 
     case. We don't suggest that the proposal would lead to 
     widespread federal involvement in routine criminal matters, 
     but it is too permissive--and for the wrong reason.
       The president's White House Conference on Hate Crimes, as 
     it turned out, was less a discussion of these offenses than a 
     kind of pep rally against the dreaded emotion itself.
       That's fine as a bully-pulpit exercise, but the federal 
     focus on what are called hate crimes must not wander too far 
     from criminality. While the government has a simple 
     obligation to protect us from crime, its relationship with 
     hatred is necessarily more complicated. Government officials 
     can denounce hatred and pass anti-discrimination laws, but 
     when push comes to shove, most expressions of ugly 
     intolerance are protected by the First Amendment. Proponents 
     of the new measure argue that a swastika painted on a 
     synagogue has a deeper impact on a community than does a 
     routine act of vandalism, and that's true as far as it goes. 
     But the victim of a bias-motivated stabbing is no more dead 
     than someone stabbed during a mugging. Ultimately, we 
     prosecute crimes, not feelings. Guiding how people feel about 
     one another is only marginally a law enforcement concern.
                                  ____


                [From the Washington Post, Dec. 1, 1997]

             When Combating Hate Should Be a Federal Fight

                (By Edward M. Kennedy and Arlen Specter)

       The Post's Nov. 17 editorial criticizing the measure we 
     have introduced on hate crimes reflects a misunderstanding of 
     our proposal to close the gaps in federal law and a failure 
     to recognize the profound impact of hate crimes.
       Hate crimes are uniquely destructive and divisive because 
     they injure not only the mediate victim, but the community 
     and sometimes the nation. The Post's contention that a victim 
     of a bias-motivated stabbing is no more dead than someone 
     stabbed during a mugging suggests a distressing 
     misunderstanding of hate crimes. Random street crimes don't 
     provoke riots; hate crimes can and sometimes do.
       The federal government has a role in dealing with these 
     offenses. Although states and local governments have the 
     principal responsibility for prosecuting hate crimes, there 
     are exceptional circumstances in which it is appropriate for 
     the federal government to prosecute such cases.
       Hate crimes often are committed by individuals with ties to 
     groups that operate across state lines. The Confederate 
     Hammerskins are a skinhead group that began terrorizing 
     minorities and Jews in Tennessee, Texas and Oklahoma a decade 
     ago.
       Federal law enforcement authorities are well situated to 
     investigate and prosecute criminal activities by such groups, 
     and the federal government has taken the lead in successfully 
     prosecuting these skinheads.
       Hate crimes disproportionately involve multiple offenders 
     and multiple incidents and in such cases, overriding 
     procedural considerations--including gaps in state laws--may 
     justify federal prosecution.
       In Lubbock, Tex., three white supremacists attempted to 
     start a local race war in 1994 by shooting three African 
     American victims, one fatally, in three separate incidents in 
     20 minutes. Under Texas law, each defendant would have been 
     entitled to a separate trial in a state court, and each 
     defendant also might have been entitled to a separate trial 
     for each shooting. The result could have been at least three, 
     and perhaps as many as nine trials, in the state courts, and 
     the defendants, if convicted, would have been eligible for 
     parole in 20 years. They faced a mandatory life sentence in 
     federal court.
       Federal and local prosecutors, working together, decided to 
     deal with these crimes under federal laws. The defendants 
     were tried together in federal court, convicted and are 
     serving mandatory life sentences. The victims and their 
     families were not forced to relive their nightmare in 
     multiple trials.
       Federal involvement in the prosecutions of hate crimes 
     dates back to the Reconstruction Era following the Civil War. 
     These laws were updated a generation ago in 1968, but they 
     are no longer adequate to meet the current challenge. As a 
     result, the federal government is waging the battle against 
     hate crimes with one hand tied behind its back.
       Current federal law covers crimes motivated by racial, 
     religious or ethnic prejudice. Our proposal adds violence 
     motivated by prejudice against the sexual orientation, gender 
     or disability of the victim. Our proposal also makes it 
     easier for federal authorities to prosecute racial violence, 
     in the same way that the Church Arson Prevention Act of 1996 
     helped federal prosecutors deal with the rash of racially 
     motivated church arsons.
       The suggestion in the editorial that our bill tramples 
     First Amendment rights is ludicrous. Our proposal applies 
     only to violent acts, not hostile words or threats. Nobody 
     can seriously suggest that the neo-Nazis who murdered Fred 
     Mangione in a Houston nightclub last year because they 
     ``wanted to get a fag'' were engaged in a constitutionally 
     protected freedom of speech.
       In addition, hate-crimes prosecution under our bill must be 
     approved by the attorney general or another high-ranking 
     Justice Department official, not just by local federal 
     prosecutors. This ensures federal restraint and that states 
     will continue to take the lead in prosecuting hate crimes.
       From 1990 through 1996, there were 37 federal hate crimes 
     prosecutions nationwide under the law we are amending--fewer 
     than six a year out of more than 10,000 hate crimes 
     nationwide. Our bill should result in a modest increase in 
     the number of federal prosecutions of hate crimes.
       When Congress passed the Hate Crimes Statistics Act in 
     1990, we recognized the need to document the scope of hate 
     crimes. We now know enough about the problem, and it is time 
     to take the next step.
       As the Lubbock prosecution shows, combating hate crimes is 
     not exclusively a state or local challenge or a federal 
     challenge. It is a challenge best addressed by federal, state 
     and local authorities working together. Our proposal gives 
     all prosecutors another tool in their anti-crime arsenal. The 
     issue is tolerance, and the only losers under our proposal 
     will be the bigots who seek to divide the country through 
     violence.

  Mr. SPECTER. An additional comment or two. We have seen times change 
with respect to don't ask, don't tell. When this was put into 
operation, it seemed to me at the time--and I have said repeatedly in 
the intervening decade-plus that don't ask, don't tell has been in 
effect--that it has outlived its usefulness, its utility. I do not know 
that it ever had utility, but, if so, it certainly ought to be changed 
now.
  There are men and women, regardless of sexual orientation, who serve 
with bravery and distinction in the military. Don't ask, don't tell 
ought to be repealed. There are limits as to what the President may be 
able to do through an executive order. So where congressional action is 
warranted, let it be enacted.
  On a somewhat similar tone, times have changed with the Defense of 
Marriage Act since it was enacted back in 1996. Now we have seen the 
States of Connecticut, Iowa, and Massachusetts have legalized same-sex 
marriage. It is an issue where attitudes have changed very 
considerably. I think, just as we were finally able to get hate crimes 
legislation through, just as it is time to move ahead and move beyond 
don't ask don't tell, it is time to repeal the Defense of Marriage Act.
  In the absence of any other Senator right now seeking recognition, I 
suggest the absence of a quorum.

[[Page S10727]]

  The PRESIDING OFFICER. The clerk will call the roll.
  The bill clerk proceeded to call the roll.
  Mr. HARKIN. I ask unanimous consent that the order for the quorum 
call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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