[Congressional Record (Bound Edition), Volume 146 (2000), Part 12]
[House]
[Pages 17813-17822]
[From the U.S. Government Publishing Office, www.gpo.gov]



 MOTION TO INSTRUCT CONFEREES ON, H.R. 4205, FLOYD D. SPENCE NATIONAL 
             DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2001

  Mr. GRAHAM. Mr. Speaker, pursuant to clause 7 of rule XX, I offer a 
motion to instruct conferees.
  The SPEAKER pro tempore (Mr. LaHood). The Clerk will report the 
motion.
  The Clerk read as follows:

       Mr. Graham moves to instruct conferees on the part of the 
     House that the conferees on the part of the House on the 
     disagreeing votes of the two Houses on the bill, H.R. 4205, 
     be instructed not to agree to provisions which--
       (1) fail to recognize that the fourteenth amendment to the 
     Constitution guarantees all persons equal protection under 
     the law; and
       (2) deny equal protection under the law by conditioning 
     prosecution of certain offenses on the race, color, religion, 
     national origin, gender, sexual orientation, or disability of 
     the victim; and
       (3) preclude a person convicted of murder from being 
     sentenced to death.

  The SPEAKER pro tempore. Under the rule, the gentleman from South 
Carolina (Mr. Graham) and the gentleman from Michigan (Mr. Conyers) 
each will be recognized for 30 minutes.
  The Chair recognizes the gentleman from South Carolina (Mr. Graham).
  Mr. GRAHAM. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the topic that we are addressing today in the motion to 
instruct conferees on the DOD bill involves an effort made by Senator 
Kennedy in the Senate to attach Federal hate crimes legislation to a 
bill in the Senate. This issue is now before the House. It is before 
America.
  To Senator Kennedy's credit and to the gentleman from Massachusetts 
(Mr. Frank), I would think it is fair, I hope he does not take offense, 
Senator Kennedy is one of the last liberal lions. He has roared loudly 
and he has fought for his position and he was successful in the Senate.
  As to my motion to instruct conferees on this matter, I hope people 
who agree with my position will also raise their voice loudly because 
it is an honest debate long overdue about exactly what we need to be 
doing in America when it comes time to punish people and what role the 
Federal Government has.
  There has been a huge departure in the law of the land to the Kennedy 
amendment. Federal jurisdiction is now available through the Attorney 
General of the United States in almost every act of criminal violence 
that may exist in the country if in the mind of the perpetrator and the 
status of the victim certain people are involved.
  I hope we will reject this way of thinking. I hope we will, as a 
Nation, prosecute vigorously those who with intent, malice 
aforethought, through the violation of existing State law, hurt human 
beings in general and that there is no need, objectively speaking, 
politically speaking, to have a Federal crime that only applies based 
on the hate of the perpetrator and the status of the victim.
  This legislation has a four-part test that would allow the Attorney 
General to invoke a Federal statute that does not exist today, and the 
last prong is the Federal interest and hate crime eradication is 
insufficiently served by a State prosecution. That is all encompassing. 
That means whatever the Attorney General wants it to mean.
  I stand before the House and the country saying that we in America 
have laws at the State level that apply to everyone. I do not know of 
any law in this country by any State or any jurisdiction that says we 
can hurt certain people because of their race, religion, or sexual 
orientation. That is not a defense. That is not a problem that we are 
having to deal with in this country.
  This is an effort, I believe, to give Federal jurisdiction to expand 
the role of the Federal Government in a way that will ultimately divide 
Americans.
  The Columbine High School case is a case in point. Two obviously 
hateful,

[[Page 17814]]

disturbed young men took it upon themselves to do tremendous violence 
and damage and murder. Their motives vary. They killed some people 
because they were jocks. They killed other people because they did not 
like them personally. They killed some people because of their race. 
They were twisted minds. They brought a lot of pain and heartache and 
suffering to many families.
  My motion to instruct says simply this, prosecute people not for 
their motives but for their actions.
  Motives are important. They have to intend to kill. If they tie 
someone to the back of a truck in Texas and they drag them to their 
death, I do not care why they did it, if they intended to do it, they 
deserve the fullest and swiftest punishment available.
  The Kennedy amendment allows the Federal Government to pick and 
choose based on the status of the victim. In that case, an African 
American was dragged to his death because the people involved had hate 
in their heart. In the State of Texas, one is serving life and two of 
those folks involved are facing the death penalty. That to me is 
justice. And that can happen and has happened all over this country.
  Using the model that Senator Kennedy has put forward, eight murders 
would fall in the classification of hate crimes, nine of the thousand 
rapes. I would argue to the Members of this House that every rape is a 
hate crime.
  Before I came to this body, I was a prosecutor in the civilian world 
in the Air Force; and I will assure my colleagues that every woman that 
has been violated and is forcibly raped, the man involved hated that 
woman, and I do not care to know any more other than, without their 
consent, they did a great violence to their body.
  In the Texas case, here is what could happen if this law that Senator 
Kennedy has proposed goes forward and if we agree to it today. There is 
an element of the Kennedy Federal legislation that is very curious and 
potentially very damaging. We are creating two statutes to deal with 
the same event. The Federal Government, under this legislation, because 
we are the Federal Government, would have the ability to prosecute the 
case first if it reached out and grabbed the case.
  Let us use the case in Texas for instance. Under the legislation 
proposed by Senator Kennedy and this House will be instructing 
conferees on, the death penalty is not authorized. That is a huge 
point. The basis of the Kennedy legislation deals with events that 
really are not real in substance. There are no mass ignoring bodily 
injure cases based on people's sexual orientation, race, gender, or 
religious background. That is not a problem in this country. And that 
is good news.
  But here would be the problem if we adopted Senator Kennedy's way of 
doing business. The Federal Government, by legal right, would have the 
ability to take that case over from the State courts, engage in the 
prosecution, spend the money, the time, and the effort, and the result 
would be in the Federal system that the two people facing Death Row 
punishment in Texas could not be sentenced to death under the Federal 
legislation. It changes the death penalty component of every murder 
statute in this country.
  I want the Members to understand what they are voting on.
  Let us talk about the politics for a moment. There are many people 
really worried about this vote. If I do not create a new Federal 
statute that would give the Attorney General the right to take over any 
case in the land when certain conditions are met based on the attitude 
and the motivation of the perpetrator, maybe people will think that I 
am a racist, that I am homophobic, that I have religious prejudice. 
Because that is the political dynamic going on here.
  The question we need to ask as a Member of Congress is, do we trust 
our States to deal with situations where people are assaulted in 
general and specifically where race, religion, or sexual orientation is 
involved.
  If we do, we do not need this legislation. The question we need to 
ask ourselves is, is there a legitimate reason other than the political 
dynamic being created for us to give the Federal Government power 
unknown in the history of our country to reach out and grab a case that 
could be prosecuted in the State court. I would argue not.
  I would argue that what we need to do in this country is make sure 
that those people who hurt human beings, regardless of the motivation, 
receive the fullest punishment under the law, the full extent of 
punishment available.
  The Kennedy proposal takes off the table the death penalty, and the 
chance of having two prosecutions is very remote because the Federal 
Government will go first and the only way the death penalty can be 
applied is to do a separate prosecution in State court. And if they 
have the desire and the willingness to do that to begin with, there is 
no need to remove it.
  So I would argue very strongly to the Members of the House that this 
proposal does not address real problems in America that exist today, it 
is creating a whole new set of problems that this country cannot stand.
  We are thinking of a million reasons to divide ourselves. We focus on 
our differences in this House in a political fashion that maybe goes 
overboard. But America needs to come together on the idea that we do 
not care why they engage in violence, we are going to punish them if 
they do. And every American should feel good about the idea that they 
are going to be judged based on their conduct and that their sexual 
orientation, their religious background, or their race is not going to 
create one statute for them and leave everybody else behind. That does 
not make a better America, and that does not address the problems of 
crimes.
  Because the hate crime legislation that Senator Kennedy proposed, the 
real area where the cases would be had is in the simple assault area, 
areas where people get in all kinds of conflicts and, under the theory 
of the statute, they could remove it. I would argue there is no need to 
do that.
  The real danger here is that we are empowering the Federal Government 
to remove a case, whether it be the Columbine case or whether it be the 
Texas case with the gentleman behind the truck who was dragged to a 
violent death, and prosecute that case in a manner that would do great 
harm to serving ultimate justice within the jurisdiction where it 
happened.
  Mr. Speaker, I hope that we will reject the political movement, the 
political cause of the day, and stand behind a simple concept that the 
Federal Government has a proper but limited role and that, when 
individual citizens choose to hurt their neighbors, hurt other citizens 
within their State, that the State has a chance to do swift and certain 
justice and that we not pass a Federal law that takes the death penalty 
in practicality off the table. This is not going to make America a 
better place.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I am happy to join my distinguished colleague from the 
Committee on the Judiciary on this matter. He has three positions with 
which he asks that we be instructed not to agree. One and three are 
false, and two I disagree with.
  First of all, it is not accurate to say in our bill that we preclude 
a person convicted of murder from being sentenced to death. While we do 
not have a death penalty, some States do. And so, wherever the State 
law applies, there would be a death penalty.
  In our bill, we do not have one. And so, I do not see where that is 
very important.
  He questions whether or not the Fourteenth Amendment, by guaranteeing 
all persons equal protection under the law, is a safeguard against the 
hate crimes bill. And that has no accuracy whatsoever.
  And so, I am a little baffled by the motion to instruct because he 
seems to suggest that the bipartisan legislation that the Senate has 
passed somehow violates the equal protection of the laws and affects 
the Federal Government's administration of the death penalty. We do not 
appear to be discussing the same bill.

[[Page 17815]]

  The Graham motion would instruct the conferees to reject provisions 
that fail to account for the fact that the Constitution guarantees all 
persons equal protection under the law. His motion is beside the point 
because his statement is, apparently, designed to create constitutional 
doubt where none exists.
  The Congress' authority to create new penalties for violent crimes 
involving bodily injury if motivated because of race, color, religion, 
national origin, gender, sexual orientation, or even disability, does 
not depend on the equal protection clause of the Fourteenth Amendment.

                              {time}  1330

  What it rests on is the undisputed authority of the 13th amendment 
and on the commerce clause itself. So my friend, the gentleman from 
South Carolina (Mr. Graham), I guess is saying that by prohibiting hate 
crimes against individuals who have suffered historic discrimination on 
the basis of race and color or national origin or gender or sexual 
orientation or disability, that we are violating the constitutional 
rights of everyone else. Could that be what he is saying?
  Well, if it is true, then I have to raise a question of whether he 
thinks that any statute that prohibits discrimination and violence on 
the basis of these categories also violate the 14th amendment. Should 
they be repealed? Should we repeal the existing Federal criminal hate 
crimes law already on the books since 1968, which prohibits the 
intentional interference, with the enjoyment of Federal rights and 
benefits on the basis of, again, the victim's race, religion, national 
origin, or color? Should we repeal the Church Arson Act which prohibits 
the intentional destruction of religious property because of race, 
color, or ethnic characteristics of individuals who worship there?
  One cannot avoid race. These are the problems. One cannot avoid 
disability. One cannot avoid sexual orientation. Does the gentleman 
want to repeal the Civil Rights Act of 1964, which prohibits employment 
in public accommodations based on discrimination of race, color, 
religion, as usual? Do we want to repeal the Age Discrimination 
Employment Act of 1967? What about the Fair Housing Act of 1968, which 
prohibits housing discrimination on the basis, again, of the usual 
factors? Does he want to repeal the Americans with Disabilities Act of 
1990? We just celebrated it for a decade of progress, which prohibits 
discrimination on the basis of disability; and the rest. It goes on and 
on and on.
  So if this is a new historic challenge to raise a constitutional 
point that has never been thought of before, this is a great time to 
have that debate. If it turns out that the first instruction, part one, 
is not accurate, the second we disagree with, and the third is not 
accurate, then we should move quickly on to a motion to instruct the 
conferees on hate crimes that I have that will come up shortly.
  Mr. Speaker, I reserve the balance of my time.
  Mr. GRAHAM. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I would like to answer some of the questions asked. The 
answer is, no, I am not asking that this body or any body vote to 
repeal laws that make it unlawful to discriminate based on race, 
religion, the 14th amendment in general. What I am asking this body to 
do is not to create a Federal law that does that.
  Here is the effect of it: if somebody kills me, that would bother my 
family. I do not know if it would bother a lot of other people, but it 
would bother my family. Somebody kills the gentleman from Michigan (Mr. 
Conyers) and we let the motive of that person decide what to do, my 
family is out. That is the effect of this statute. The victims and the 
attitude of the perpetrator decide whether or not the Federal law 
applies.
  Let me say what is going to happen throughout America if we pass this 
legislation as drafted. Criminal defense attorneys, pretty smart guys, 
pretty smart ladies, I have been one, I do not know if I was smart 
enough, but if I have somebody come in to my office and this statute 
exists that allows the Federal Government to engage in prosecution 
first, and I would argue exclusively because the effect of doing it 
twice is lost, that there is going to be a rise in hate crimes because 
the defendant is going to find the Federal niche that allows the case 
to go into the Federal system where there is no death penalty. That is 
what is going to happen here.
  We are going to have people throughout the land manufacturing motives 
that give the benefit of a Federal statute that prohibits the death 
penalty because in the State where they live they could get the death 
penalty, and the chance of prosecuting these cases twice are almost 
zero from a practical point of view.
  Mr. NADLER. Mr. Speaker, will the gentleman yield?
  Mr. GRAHAM. I yield to the gentleman from New York.
  Mr. NADLER. Mr. Speaker, I would say to the gentleman from South 
Carolina (Mr. Graham), he just said that if we passed hate crimes 
legislation, defendants would opt for the Federal statute and so forth; 
but what the bill before the Senate that we are talking about, before 
the conference committee, I suppose, does is expand existing hate 
crimes legislation that has been on the books for 32 years three new 
categories: sexual orientation, gender, disability. It is already on 
the books. Has it had that effect?
  Mr. GRAHAM. Reclaiming my time, the existing statute that deals with 
Federal prosecution of events like going to serve on a jury or going to 
vote is one thing where there is a clear Federal nexus. What this body 
needs to know that what has happened in the Senate is that the Federal 
nexus is nonexistent. It is every event in America now is subject to 
the Attorney General certifying under prong four that this is somehow a 
hate crime and the Federal Government preempts.
  I am not asking that the statutes that exist be repealed that protect 
Americans at the Federal level from participating in guaranteed 
constitutional activities. I am saying that this allows the Federal 
Government, through prong four and through the whole intent of the 
legislation, to take any event, anywhere, any time, and make it a 
Federal case and the death penalty is taken off the table. That is not 
good for this country.
  One, people are divided. I do not get the benefit of the statute in 
certain situations; some other person might. We are equally harmed. The 
State has the ability to take care of this.
  If it is taken from the State and they are expected to prosecute the 
person for the death penalty later on, there was no need to take it 
from the State to begin with.
  Mr. NADLER. Mr. Speaker, will the gentleman yield?
  Mr. GRAHAM. I yield to the gentleman from New York.
  Mr. NADLER. I would say to the gentleman from South Carolina (Mr. 
Graham), the current statute is a hate crimes statute with respect to 
race, color, creed, national origin. That is the statute. The amendment 
would be sexual orientation, gender, disability.
  Mr. GRAHAM. Reclaiming my time, the statute has a mechanism to create 
Federal jurisdiction, the current statute, that requires a Federal 
nexus.
  The amendment has a four prong test and the final prong of that test 
is that Federal interest in hate crime eradication, according to the 
Attorney General, is insufficiently served by a State prosecution, 
which means there really is nothing more than the opinion of the 
Attorney General determining whether or not there is State or Federal 
jurisdiction.
  This is the expansion that I am talking about, not that people are 
prosecuted based on the motive; that it is being expanded to an area 
where there is no Federal nexus required and this would allow the 
Federal Government, based on this four prong test, to take any case and 
every case.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the 
distinguished gentleman from Massachusetts (Mr. Frank).
  Mr. FRANK of Massachusetts. I begin, Mr. Speaker, by congratulating

[[Page 17816]]

my friend, the gentleman from South Carolina (Mr. Graham), from 
untrapping himself. He had originally filed two potential instructions. 
At some point, he must have figured out, with or without help, that 
they contradicted each other. So he dropped the one.
  Mr. GRAHAM. They did.
  Mr. FRANK of Massachusetts. Well, the gentleman acknowledges without 
my yielding to him, but I am a generous kind of guy so I will 
acknowledge his acknowledgment.
  The gentleman acknowledges that he filed two instructions yesterday, 
on the spur of the moment, which contradicted each other, and then he 
prayed over it overnight and figured out that they contradicted each 
other. We were not told until shortly before we began which one he was 
going to do. So apparently the gentleman first figured out they 
contradicted each other and then decided which one.
  Mr. GRAHAM. Mr. Speaker, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from South 
Carolina.
  Mr. GRAHAM. Mr. Speaker, the two motions to instruct were filed last 
night. I have always intended to do the one I am talking about now. I 
had a colleague ask that they preserve the right to approach it from a 
different angle. That is up to them, but that is why I did it.
  Mr. FRANK of Massachusetts. Well, the gentleman from South Carolina 
(Mr. Graham) filed them both so apparently he tells us now that he 
filed one knowing that it contradicted the other.
  I will say this, and let me point out that the contradiction is not 
simply a minor thing. The one he filed and decided not to offer deals 
with hate crimes of the sort that the second one says are 
unconstitutional. So the gentleman filed two instructions. One he was 
reserving the right to instruct the House to do something which he has 
now decided is unconstitutional. That is a reversal. I have seen the 
Supreme Court reverse itself on constitutional issues, but it usually 
takes them more than 12 hours.
  Now, it is not simply the gentleman's first instruction that would be 
repudiated here. What it says, and this is particularly relevant to 
section 2, he says here that it is a denial of equal protection under 
the law if prosecution of certain offenses is conditioned on the race, 
color, religion, national origin, gender, sexual orientation, or 
disability of the victim.
  First, let us be very clear. This does not say if one is black they 
are protected and if one is white they are not; if one is gay they are 
protected and if one is straight they are not; if one is disabled they 
are protected and if one is able-bodied they are not. What it says is 
that if someone goes after someone else on any of those grounds, if a 
racial minority attacks someone who is white for these hate crime 
reasons, that is protected. So it is not giving one set of groups 
protection against another.
  It is saying, equally, anyone who is attacked because someone objects 
to his or her membership in a group that is defined by race, color, 
religion, national origin, that is the majority, the minority of 
religions, there is no one majority so it is any group, they are all 
protected. Christians are protected, Jews are protected, Hindus are 
protected, atheists are protected, if the motive is based on their 
religion.
  Now we have had laws like this on the books for a very long time. We 
begin with the Civil Rights Act in the 1860s right after the Civil War. 
We had House-passed lynch laws, which Republicans used to be for, which 
dealt with this. We have on the books some hate crimes statutes. We 
have in some anti-discrimination statutes, I believe, some criminal 
provisions.
  There was some anti-discrimination statutes which if they are 
violated blatantly one can have criminal provisions. According to this 
resolution, all of those would be wrong because there are a series of 
statutes on the book that trigger prosecution based on the race, color, 
religion, et cetera, of the victim.
  Now, why did this all of a sudden become controversial? Why did the 
Civil Rights Act of 1868 and the Church Arson Act that my colleague 
from Michigan mentioned and others, why did they suddenly become 
controversial? I guess I ought to apologize. It is because of us. By 
us, I refer to those of us who are gay or lesbian or bisexual.
  This whole notion of prosecuting people who singled out vulnerable 
minorities or who, as a member of a minority acted against the majority 
based on this, the Church Arson Act, the anti-lynch laws, et cetera, it 
was never all that controversial and then people said among the people 
who are often assaulted because of their identity are gay and lesbian 
and bisexual, particularly transgender people who have been the victims 
of a lot of violence, and all of a sudden it became controversial. That 
is why the gentleman first had an instruction and it is one that many 
in the other body on the Republican side were in favor of; it was one 
that said we will do hate crimes, but we will stick with good old-
fashioned categories like race and religion; but let us not get into 
sexual orientation. So some inconsistencies have arisen because of 
sexual orientation.
  Now among the inconsistencies is the notion that my friends on the 
other side are opposed to federalizing State crimes. I mean, they 
should write for some situation comedies with that kind of material. 
The House Committee on the Judiciary has consistently federalized 
crimes. Carjacking we federalized; in the abortion area, the late-term 
abortion bill. States had the same powers as the Federal Government, 
whether there is or is not a constitutional problem. It was a Nebraska 
statute that went to the Supreme Court.
  We also passed a Federal statute. The House Committee on the 
Judiciary and the Congress, for the past 6 years, has federalized a 
number of crimes without any particular Federal nexus. Indeed, the 
Supreme Court struck down some of these because they said there was not 
enough of a Federal nexus, but our committee has gone forward with 
others.
  So there has never previously been an objection to saying that we are 
going to punish someone in some cases if they have committed bad acts 
against people, not thoughts but if one has committed bad acts against 
other people because of their membership in a group, that was not until 
recently controversial. In fact, as I said, in the gentleman's first 
instruction it was not controversial at 6:00 last night. That one got a 
bad reputation very quickly.
  It is when sexual orientation entered into it that all of these 
objections came up.
  Now there is a red herring here and that is the death penalty issue. 
The fact is that, as the gentleman has acknowledged, if some Attorney 
General preempted a murder case under the hate crimes statute, it would 
still be prosecutable by the State. He says that is unlikely. What is 
even less likely is that the Attorney General, absent any real showing 
of a hate motive, would reach down and take it up.
  It does say the Attorney General can do these in cases where the 
Federal interest in prosecuting was not being vindicated.

                              {time}  1345

  Mr. Speaker, the notion that a State prosecutor was about to bring a 
capital charge against someone and threaten that person with a death 
penalty and the Attorney General would say, wait a minute, you are not 
vindicating the Federal interests, it is nonexistent. That is not 
really an argument that I think is a major part of this.
  Mr. Speaker, I think what we have here is this resistance on the part 
of some people on the other side to anything that deals with sexual 
orientation.
  We just voted on something with the Boy Scouts. I regretted that that 
came up. I thought that bill should not be filed. I thought it should 
not be brought up. I think the Boy Scouts do a lot of good work. I 
regret the fact that they discriminate. I do not think the appropriate 
way to try to deal with it was the way here.
  Mr. GRAHAM. Mr. Speaker, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from South 
Carolina.

[[Page 17817]]


  Mr. GRAHAM. Mr. Speaker, does the gentleman from Massachusetts 
believe there is a problem throughout the country that people based on 
the sexual orientation and who are hurt in a violent confrontation that 
people are letting the prosecution go because of the sexual 
orientation?
  Mr. FRANK of Massachusetts. Reclaiming my time, Mr. Speaker, not 
throughout the country, but in some places in the country, in fact, I 
believe, just as there was strong support for lynch laws.
  Mr. GRAHAM. How many cases?
  Mr. FRANK of Massachusetts. When I yield to the gentleman that means 
the gentleman asks the question and I get to answer. Okay. I will yield 
again in a minute.
  Mr. GRAHAM. Yes, sir.
  Mr. FRANK of Massachusetts. I want to finish the answer. We had a 
hearing before the Committee on the Judiciary last year and several 
people came forward, including one particular case in Oklahoma where 
people were beaten and were not given any prosectorial defense.
  Mr. GRAHAM. Would the gentleman yield?
  Mr. FRANK of Massachusetts. Not until I finish. I urge the gentleman 
to have a little patience. He has asked the question; it is a little 
complicated. The answer will take awhile.
  There was a situation in Pennsylvania, where a particular bar was the 
subject of a great deal of violence, and I believe there was initially 
an insufficient response.
  The point is that this legislation is written to take into account 
the fact that most crimes of violence are, in fact, prosecuted at the 
State and local level. Part of what it does is to offer aid to people 
at the State level and that, by the way, we have had people, for 
instance, the local law enforcement officials in Wyoming who prosecuted 
the Matthew Shepherd murder, welcomed that, because they can be 
overburdened by it. They can have hate groups that show up; and they 
can overburden, in some areas, the local resources.
  But we are saying there will be some cases in this vast country where 
a particular group will be subject to a particular prejudice, and in 
those exceptional cases the Federal Government can intervene. So I can 
think of a couple right recently that we have had. There was some 
others, I do not remember exactly which came up in the hearing. But, 
yes, there are cases where there are particular prejudices against 
particular groups. Transgendered people happen to be in many cases the 
objects of violence. And in many cases, they are protected; but in some 
cases, because of the prejudice that they face, they have not been 
protected. This is a standby authority for the Attorney General to step 
in, if she finds that there is this pattern of nonenforcement.
  Mr. GRAHAM. Mr. Speaker, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from South 
Carolina.
  Mr. GRAHAM. The gentleman talks about, not me directly, but what we 
are trying to do. I challenge the gentleman to prove to anybody in this 
body that I, as a person, former prosecutor, would give the gentleman a 
pass if the victim was homosexual and the perpetrator just did not 
like, and I will only use the terms that came up in the Air Force case, 
the faggot that lived down the hall. That guy got the full effect of 
the law.
  I say to the gentleman from Massachusetts (Mr. Frank), I do not 
believe that America is such today that the State court systems need to 
have the Attorney General under this legislation because of any reason 
they so choose to be able to take that case away.
  Mr. FRANK of Massachusetts. Reclaiming my time, let me respond, I am 
going to respond, first of all, the gentleman asked me to prove that 
the gentleman is biased?
  Mr. GRAHAM. No. I am asking the gentleman to tell me how many cases 
are we talking about the gentleman mentioned. Is it 100? Is it 200? 
Where are they?
  Mr. FRANK of Massachusetts. I do not have the exact number, but I 
will respond to the gentleman's assertion. He says he cannot believe, 
apparently, that anywhere in this country there would be bias on the 
part of local law enforcement that would lead to unequal prosecution.
  I wish we lived in that country. I believe most law enforcement 
people do the right thing. I gave them two specific cases, one in 
Oklahoma, where people were beaten and the district attorney did not 
intervene, and one in Pennsylvania where a bar was being terrorized and 
there was not local intervention.
  I would say this, this concern about Federal intervention puzzles me 
coming from someone who has generally voted with the committee majority 
to federalize a number of crimes. Carjacking, is it that there are 
State prosecutors who somehow have a soft spot in their heart for 
carjackers? Why did the majority federalize carjacking? I do not think 
that they did that because there was some soft spot; they felt there 
was some particular pattern that had to be responded to.
  There have been other cases, where we have in this body, I sometimes 
voted no, made Federal crimes out of things that were also State 
crimes. But the gentleman's point I want to focus on, this statute 
assumes that prosecution at the Federal level will be the exception.
  In fact, much of the statute that we are asking people to vote for 
says let us help local people with the prosecution, let us help State 
prosecutors; but for him to argue that it is unthinkable that anywhere 
in the country members of a particular insular group might be the 
victims, people of an unpopular religion, transgendered people, people 
of a particular race, and they might be of the majority race in some 
parts, but the minority race in other parts.
  The notion that American history yields us no pattern ever of local 
law enforcement people withholding equal treatment because of prejudice 
is very puzzling to me. We have not heard it before.
  Church arson, is there some pattern? Maybe the gentleman wants to 
repeal the Church Arson Act, but the Church Arson Act does talk about 
going in there in these circumstances, and I did not previously hear 
these arguments.
  Mr. GRAHAM. Mr. Speaker, will the gentleman yield?
  Mr. FRANK of Massachusetts. I yield to the gentleman from South 
Carolina.
  Mr. GRAHAM. By definition, every statute that the gentleman talked 
about has a clear Federal nexus; the existing hate crimes statute has a 
Federal nexus.
  Mr. FRANK of Massachusetts. What about church arson? What is the 
Federal nexus in the Church Arson Act? What is the Federal nexus in 
church arson? There is not any. I thank the gentleman for his shrug. 
What is the Federal nexus for church arson?
  Mr. GRAHAM. Is there none?
  Mr. FRANK of Massachusetts. I asked the gentleman a question.
  Mr. GRAHAM. Honestly, I do not know.
  Mr. FRANK of Massachusetts. I did not yield to the gentleman. I am 
being asked to give back the time. I yielded to the gentleman to ask 
him a question. If he was going to ask me the same question back, I 
would not have taken other people's time.
  Mr. GRAHAM. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, the point I am making and the point still stands, there 
are two very good points, every law we have on the books at the Federal 
level has a Federal nexus. But in the Senate, there has been a huge 
departure here. And part of it is politically motivated.
  Let me tell my colleagues the effect of this statute again. If we go 
down this road, the Attorney General of the United States for the first 
time, that person, whoever he or she may be, has the ability under this 
legislation to take an event that has no Federal nexus at all, reach 
out and grab it based on the mentality of the perpetrator and the class 
of the victim.
  Using an example, if someone in South Carolina or any other State 
engages in a violent offense against somebody based on the race, sex, 
religion, sexual orientation, under this statute, the Attorney General 
can take

[[Page 17818]]

that case away and prosecute it at the Federal level and take the death 
penalty off the table. That should really send a chilling effect 
throughout this body. Not only have we done away with the Federal 
nexus, bias exists all over the world and will to the end of time. Is 
that the reason bias in general in theory to go out and destroy the 
ability of a State to prosecute vicious crimes in their backyard?
  I would argue that this country is better off because the people in 
Texas sentenced two of the three people to death who drug the African 
American to his death behind a truck; that we are better off when local 
people will stand up and say, wrong, face the ultimate punishment, than 
we would ever be to have somebody in Washington for political reasons 
take the case away and get a headline and we can impose that penalty.
  That is what this is about. This is an effort to empower the Federal 
Government in a manner never had, and the way you get there is you 
separate us. Because if I am attacked by the same person that the 
gentleman from Massachusetts (Mr. Frank) may be attacked by, their 
motive determines what statute applies, and that is wrong.
  Columbine, when they shoot the man, the young fellow because he is a 
jock, and killed the person beside him because of her religion, and the 
one next to the table because of the color of their skin, forget about 
those differences, prosecute that person based on what they did. And 
that is what you are trying to destroy here, and that is why I am here.
  I want people to be responsible for their conduct to the fullest 
extent of law and let people where the event happens chart their 
destiny; and there is no reason to give the Attorney General of the 
United States this much power, because the abuses described do not 
exist. This is an effort to politicize and federalize where the country 
will be a great loser.
  Mr. Speaker, I yield 2 minutes to the gentleman from South Carolina 
(Mr. Sanford).
  Mr. SANFORD. Mr. Speaker, I thank the gentleman for yielding the time 
to me.
  Mr. Speaker, I hate following him. I just came to chime in for just a 
few moments because the gentleman asked me to and because I think this 
makes common sense. I think that the problem with the debate on the 
other side, and I would say to the gentleman from Massachusetts (Mr. 
Frank), who I have the utmost respect for his intellect, the utmost 
respect for the way he has been a consistent advocate for things that 
he believes in, and the only reason I find myself in this case 
differing with him is based on, for instance, the statistics I have 
here.
  For instance, last year, 23 children were murdered in America by 
their baby-sitters; 23 children were murdered in America by their baby-
sitters. And the question I think goes back to the heart of what the 
gentleman from South Carolina (Mr. Graham) was getting at. I am not a 
lawyer, I do not have a legal background, but just from the standpoint 
of common sense, let us say it was the most loving of baby-sitters, 
they took care of the child for years, but in the end they ended up 
murdering them, do we want to treat that person differently than 
somebody else simply because one hates the child more than the other?
  But the bottom line is still the same, and that is those 23 children 
last year in America are just as dead. Whether they were loved prior to 
being killed or whether they were hated prior to being killed, they are 
both dead. The theme that I think the gentleman from South Carolina is 
getting at is the theme that has been the basis of our judicial system, 
which is equality under the law.
  The other issue that I think he is getting at, and I think there is 
validity in this, and that is the idea of federalizing crime. There is 
disagreement within our conference on whether we should or should not 
do that. I found myself voting against the gentleman from Florida (Mr. 
McCollum) on any number of different things who takes a very different 
position on federalizing some of these crimes versus not.
  Lastly, I would go to the point which the gentleman from South 
Carolina has raised a couple of times, and that is, this death penalty 
issue, which is a legitimate debate; but I do not know that we want to 
preemptively strike out death penalty with this kind of legislation.
  Mr. CONYERS. Mr. Speaker, I yield 3 minutes to the distinguished 
gentleman from Connecticut (Mr. Shays).
  Mr. SHAYS. Mr. Speaker, I thank the gentleman for yielding the time 
to me, and I rise in opposition to the motion of the gentleman from 
South Carolina (Mr. Graham) and support the motion that will be offered 
by the gentleman from Massachusetts (Mr. Frank).
  If we walked down the National Mall along the Potomac River, we reach 
the newest memorial in our Nation's Capital. It honors Franklin Delano 
Roosevelt, the 33rd President of the United States. It was FDR who said 
``We must scrupulously guard the civil rights and civil liberties of 
all citizens, whatever their background. We must remember that any 
oppression, any injustice, any hatred is a wedge designed to attack our 
civilization.''
  This statement is no less true today than it was back then. I 
strongly support the Hate Crimes Prevention Act because this 
legislation respects the fundamental relationship between local law 
enforcement and the Federal Government.
  Local law enforcement agencies will continue to have primary 
responsibility for investigating, prosecuting violent crimes based on 
hate. But when it comes to violations of civil rights, the Federal 
Government has historically played an important role in the prosecution 
and punishment of these violations. And when local authorities request 
assistance or are unable or unwilling to act, Federal law enforcement 
agencies must be able to come to their aid.
  The hate crimes legislation authored by Senators Gordon Smith, a 
Republican, and Ted Kennedy, a Democrat, creates an important safety 
net to ensure victims of hate crimes receive the justice to which they 
are entitled. It will permit the Department of Justice to provide 
technical, forensic, prosecutorial or any other form of assistance to 
State and local law enforcement officials in cases of felony crimes 
that constitute a crime of violence and are motivated by bias based on 
race, color, religion, national origin, gender, disability, or sexual 
orientation. Federal hate crimes, therefore, is not a new idea.
  Mr. Speaker, for 32 years Federal law has covered certain forms of 
violence based on hate. Unfortunately, under current law, Federal 
prosecution of a hate crime is permitted only if the crime was 
motivated by bias based on race, religion, national origin, or color 
and the assailant intended to prevent the victim from exercising a 
federally protected right such as voting or attending school.
  This dual requirement substantially limits the potential for Federal 
prosecution of hate crimes, even when the crime is particularly 
heinous. The Hate Crimes Prevention Act removes this restriction, 
enhancing the ability of Federal law enforcement agencies to assist 
State and local authorities and in investigating and prosecuting hate 
crimes of all kinds.
  I believe violence based on prejudice is a matter of national 
concern, and I urge my colleagues to pass the Frank motion so we can 
enact this important legislation this year. I would say I have voted to 
federalize a number of crimes as have the opponents of this effort.

                              {time}  1400

  For me, there are times the Federal Government needs to step in.
  Mr. GRAHAM. Mr. Speaker, to address the point of my colleague here, 
who I admire very much, this is not about adding into an existing 
statute sexual orientation and disability. This is about changing 
fundamentally to its core the way the Federal Government is able to 
interfere or take over a prosecution of an otherwise State case.
  There has been a fundamental deviation here from the Senate. Senator 
Kennedy was able to create an environment legally where the only thing 
stopping the Federal Government from reaching out and grabbing a case 
for

[[Page 17819]]

the first time in the history of the country is the attitude of the 
Attorney General and put it in a venue where the death penalty does not 
apply. That is my point. The point is that this statute does so many 
bad things.


                             Point of Order

  Mr. CONYERS. Mr. Speaker, I make a point of order.
  The SPEAKER pro tempore (Mr. LaHood). The gentleman will state his 
point of order.
  Mr. CONYERS. Mr. Speaker, the gentleman from South Carolina (Mr. 
Graham) has not yielded himself time.
  The SPEAKER pro tempore. Does the gentleman from South Carolina yield 
himself such time as he may consume?
  Mr. GRAHAM. Yes.
  The SPEAKER pro tempore. The gentleman may proceed.
  Mr. GRAHAM. Mr. Speaker, to get the statute to kick into effect, all 
you need is an Attorney General willing to do it. There is no Federal 
nexus in the traditional sense of what has been the law of this land 
since its inception.
  Number two, to get this statute to kick into effect, you are treating 
Americans differently who may have suffered the same harm. The example 
I gave at Columbine, three dead kids, three different reasons in the 
mind of the perpetrator; one gets the statute, the other does not. That 
is not going to make this a better country.
  Mr. Speaker, the State court systems have proven themselves to rise 
to the occasion in horrendous events of recent time. The Wyoming case, 
the person who was brutally murdered because of sexual orientation, 
those persons are serving life in jail. It was done by the people of 
Wyoming. Wyoming is a better place for having taken care of that 
problem and risen to the occasion. The recent case of the African 
American being dragged to his death in Texas, two of the three 
perpetrators are on death row, where they should be. This statute would 
not allow that to happen if they were tried in Federal Court, and there 
would not have been a second prosecution.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield 3\1/2\ minutes to the distinguished 
gentleman from New York (Mr. Nadler), a member of the Committee on the 
Judiciary.
  Mr. NADLER. Mr. Speaker, I thank the gentleman for yielding me time.
  Mr. Speaker, I came here to rise in support of the motion to instruct 
offered by the gentleman from Michigan (Mr. Conyers) and in opposition 
to the motion to instruct offered by the gentleman from South Carolina 
(Mr. Graham), because I read the motion to instruct offered by the 
gentleman from South Carolina (Mr. Graham); and I am not sure whether 
it is worth supporting or opposing, because it does not deal with 
anything in front of the conference.
  The gentleman purports it to mean that this would oppose the hate 
crimes legislation, but we know that there is hate crimes legislation 
on the Federal books, and it has been there for 32 years. What the 
Senate proposes, and what I hope the House accedes to, is to increase 
the purview of that legislation from race, color, creed, and national 
origin, to include, which it does now, to include sexual orientation, 
gender, disability of the victim. And we certainly should, because an 
attack on someone based on those characteristics is an extra assault on 
society and ought to be punished in an extra way.
  But look at the motion to instruct offered by the gentleman from 
South Carolina (Mr. Graham). We should instruct the conferees not to 
agree to anything that fails to recognize that the 14th amendment 
guarantees all people equal protection under the law. Well, of course. 
And the Hate Crimes Protect Act does not deny anyone equal protection 
under the law. So I have no problem with that provision, because it 
does not refer to anything in front of the Senate or the House.
  He instructs that we should not agree to provisions which deny equal 
protection under the law by conditioning prosecution of certain 
offenses under race, color, religion, national origin, gender, sexual 
orientation, or disability of the victim.
  Well, the hate crimes legislation does not do that either. As was 
pointed out before, the hate crimes legislation does not say that if 
you attack a black person or a gay person only should you be 
prosecuted. It says if you attack someone because of their race, color, 
creed, of whatever variety, whatever race, whatever color or creed, 
whatever sexual orientation, whatever gender, because of that there is 
an extra viciousness and an extra protection, that does not deny equal 
protection under the law.
  Everybody is subject to it; everybody can be helped by it. Whether 
you are attacked because you are a man or a woman, a gay person or a 
straight person, a Christian, a Jew or a Hindu, black, white or green, 
it does not matter. Everybody gets that equal protection. And it says 
that we should not agree to any provision that would preclude a person 
convicted of murder from being sentenced to death.
  Well, that one, I do not agree with the death penalty, so I do not 
have a problem with that. But the fact is, it does not do that either. 
The gentleman from South Carolina (Mr. Graham) said that by the Federal 
Government prosecuting on a statute that does not have the death 
penalty, that might preclude the State from prosecuting the same act on 
a statute that does have the death penalty.
  But it is black-letter law. For the last 40 years it has been black-
letter law, Black and Douglas dissenting only, 7 to 2 in the Supreme 
Court, that different sovereignties can prosecute the same acts under 
different statutes. That is why the State can prosecute for murder, and 
the Federal Government can prosecute for deprivation of civil rights. 
If the Federal Government prosecuted for deprivation of civil rights, 
the State can still prosecute for murder; and if the death penalty 
applies, apply it.
  So the gentleman from South Carolina (Mr. Graham) is giving us in a 
motion to instruct, which is entirely phoney, tries to imply that the 
hate crimes legislation would do these things, which it clearly would 
not do. It is entirely a phony instruction; and it ought to be 
defeated, not because it is bad, but because it is phony; and the 
Conyers instruction to say to broaden hate crimes legislation to cover 
what should be covered, should be agreed to.
  Mr. GRAHAM. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, we can talk about this or you can read the law yourself. 
Here is what I am saying, unequivocally: this proposal in the Senate 
does not expand the list of categories from which a hate crime can be 
prosecuted to include sexual orientation and disability. It 
fundamentally changes and does away with the Federal nexus that exists 
in the existing statute to give the Attorney General of the United 
States, whoever that person might be, at whatever time in our history, 
the ability to reach out and take over a case based on the attitude and 
the motivations of the perpetrator and the class or category of the 
victim.
  One thing is going to flow from this: because you cannot get the 
death penalty, there are people going to be manufacturing reasons, 
believe it or not, if you have ever been in criminal law, there are 
people who are mean and clever, and I have defended some and prosecuted 
a lot, who are going to say, well, this is a hate crime; this is a 
Federal hate crime. And they want to go to Federal Court because there 
is no death penalty, and it will be a headline.
  There will be a tremendous amount of political pressure to grab this 
case, and to show you how much I care as the Attorney General, I am 
going to take this heinous situation and I am going to do it, because I 
want to get the political benefit and I am going to be the person in 
the headline. And America loses, because the Texas case, the Wyoming 
case, and the whole 21st century, I really believe, is going to be 
about people finally being held accountable for what they do.
  When you go into the Columbine High School situation, you have got 
three grieving parents. We do not need to carve out one law against the 
other two. We need to come together as a people and punish to the full 
extent of the law those that want to harm

[[Page 17820]]

human beings, end of story, and not create a Federal legislation that 
undermines the ultimate punishment, the death penalty.
  Mr. Speaker, I reserve the balance of my time.
  Mr. CONYERS. Mr. Speaker, I yield 1 minute to the gentleman from 
Massachusetts (Mr. Delahunt), a member of the Committee on the 
Judiciary and a long-time State prosecutor.
  Mr. DELAHUNT. Mr. Speaker, I thank the ranking member for yielding me 
time.
  Mr. Speaker, I know it is not the intention of my friend and 
colleague to mislead, but I think it is very important to be clear here 
that those individuals that are presently incarcerated facing the death 
penalty in Texas would still be there facing that death penalty if the 
instructions that will be offered in the Conyers motion prevail. It is 
clear that there is nothing in the Conyers motion that would preclude a 
State prosecution, absolutely nothing whatsoever; and to suggest that 
is, I would submit, unintentionally misleading.
  I also find it ironic that my colleague has concerns about the 
States' positions on these particular issues, as if the Attorney 
General will not work with the States to do what is right. The 
gentleman should be aware that the legislation is supported by the 
National Sheriffs Association and by the International Association of 
the Chiefs of Police.
  Mr. CONYERS. Mr. Speaker, I yield the balance of my time to the 
gentlewoman from Texas (Ms. Jackson-Lee), a Member of the Committee on 
the Judiciary.
  Ms. JACKSON-LEE of Texas. Mr. Speaker, I thank the ranking member for 
yielding me time, and I thank him for his leadership on this motion.
  I have come to the floor of this House to support the ranking member, 
the gentleman from Michigan (Mr. Conyers), in his motion to instruct. 
Because I view this as a very solemn debate, I want to say to my good 
friend from South Carolina that it is important for people to realize 
that Members take to heart, take seriously, the positions that they 
argue for, and I do not question the integrity or the honesty and the 
well-meaning efforts behind my good friend's motion to instruct.
  But I do want to raise some questions and concerns and offer my 
sincerity and my heartfelt expressions of opposition against this 
motion, and that is that although we have been calling the names of 
those who have tragically lost their life, some of the more well-known 
names, let me say to you that it is particularly a source of 
consternation and hurt in the State of Texas, from which I come, and 
that is to be known as the State who, in the 20th century, the latter 
part of the 20th century, had the dismemberment of a human being as a 
headline of a particular area in our State. The heinous act of hatred 
against Mr. James Barrett continues to ring loud and clear throughout 
this Nation, and, following that, the very tragic and violent and 
brutal death in Wyoming of Matthew Shepard.
  But I would say to my friend from South Carolina, even now, just a 
few short months ago, three individuals saw fit to burn a cross in the 
front yard of an African American family that moved into a neighborhood 
that was predominantly white. This is in modern-day Texas. This is in 
an area not far from Houston, Texas. This is real.
  So when we begin to talk about are we serious about a hate crimes 
initiative, let me say to the gentleman from South Carolina (Mr. 
Graham), in opposing this motion to instruct, we already have and 
understand the value and importance of the 14th amendment, the 
guarantee of equal protection of the law. You already have the evidence 
that the Constitution has been preserved by 30 years of case law that 
already says that hate crimes legislation can pass constitutional 
muster.
  In addition, I think it is important to note your provision number 
two suggests exclusion. There is no exclusion to addition. All we are 
doing in this Hate Crimes Act of 2000 is to ensure that in addition to 
all the other elements of this bill, gender and sexual orientation and 
disability are included. It is not exclusion; it is inclusion. It means 
that if an Anglo or a white or a Caucasian citizen of the United States 
or any other, was found to have been hatefully acted upon, they would 
be able to come under the hate crimes law. It is to be read broadly.
  I agree with my good friend talking about the death penalty, because 
many of us fall on different positions on the death penalty.

                              {time}  1415

  I believe there should be a moratorium. I believe it is a tragedy 
that there are people who are on death row that we do not really know 
whether or not they, in fact, are guilty.
  Mr. Speaker, what I would say in conclusion is that I will include 
for the Record at this time a letter from the Department of Justice. We 
have already answered the question as to whether this denies the equal 
protection of the law. It does not.

                                            Department of Justice,


                                Office of Legislative Affairs,

                               Washington, DC, September 13, 2000.
     Hon. Richard Gephardt,
     Minority Leader, U.S. House of Representatives, Washington, 
         DC.
       Dear Mr. Leader: The Department of Justice has been asked 
     for its view on a motion by Representative Graham that would 
     instruct the House conferees on H.R. 4205. The motion appears 
     to be directed at the hate crimes provisions contained in 
     section 1507 of the Senate-enacted version of H.R. 4205. The 
     motion would instruct the conferees not to agree to 
     provisions in section 1507 that ``(1) fail to recognize that 
     the fourteenth amendment to the Constitution guarantees all 
     persons equal protection under the law; an (2) deny equal 
     protection under the law by conditioning prosecution of 
     certain offenses on the race, color, religion, national 
     origin, gender, sexual orientation, or disability of the 
     victim; and (3) preclude a person convicted of murder from 
     being sentenced to death.''
       With respect to the first two parts of the proposed 
     instruction, we already have provided extensive analysis 
     explaining the bases of Congress's constitutional authority 
     to enact the hate crimes provisions in Sec. 1507 of the 
     Senate-enacted version of H.R. 4025. Moreover, those 
     provisions would not implicate the Equal Protection Clause of 
     the Fourteenth Amendment, which applies only to the States. 
     And, in our view, those provisions would be wholly consistent 
     with the equal protection component of the due process clause 
     of the Fifth Amendment. The protections afforded by the 
     criminal provisions in section 1507 would not be limited to 
     persons of certain races, colors, etc. Those provisions 
     would, instead, protect all persons--regardless of their 
     race, color, etc.--who are the victims of certain crimes of 
     violence committed because of the victims' actual or 
     perceived race, color, religion, national origin, gender, 
     sexual orientation, or disability. In this regard, section 
     1507 would be analogous to numerous existing laws that 
     protect all persons from certain harms perpetrated against 
     them because of personal characteristics (such as race or 
     gender). See e.g., 18 U.S.C. Sec. 245(b)(2) (prohibiting the 
     willful injuring of a person ``because of,'' inter alia, 
     ``his race, color, religion or national origin''); 42 U.S.C. 
     2002e-2 (prohibiting employment discrimination ``because of 
     [an] individual's race, color, religion, sex, or national 
     origin'').
       With respect to the final part of the proposed instruction, 
     the amendment instructs conferees not to agree to provisions 
     that ``preclude a person convicted of murder from being 
     sentenced to death.'' This provision would have no bearing on 
     Section 1507 of H.R. 4205. That provision does not address 
     the death penalty or prosecutions for murder. Rather, it 
     recognizes that States retain primary responsibility for 
     enforcing criminal laws against violent conduct. The 
     provision requires that federal authorities consult with 
     state officials before initiating a federal prosecution and 
     would not impose any restrictions on the ability of state 
     authorities to pursue whatever sanctions are available 
     pursuant to state law.
       Thank you for the opportunity to present our views. The 
     Office of Management and Budget has advised us that from the 
     perspective of Administration's program, there is no 
     objection to submission of this letter.
           Sincerely,
                                                     Robert Raben,
                                       Assistant Attorney General.

  Mr. Speaker, I support the motion of the gentleman from Michigan (Mr. 
Conyers), and I oppose the motion of the gentleman from South Carolina 
(Mr. Graham).
  Mr. Speaker, I rise on the Conyers motion to instruct conferees on 
the Department of Defense Authorization bill. It is important that 
Congress adequately address hate crime violence in America.
  Today, we have a unique opportunity to instruct conferees on H.R. 
4205, the FY 2001

[[Page 17821]]

Department of Defense Authorization bill, to accept the bipartisan 
Senate-passed provision on hate crime.
  In June, the Senate passed the hate crimes bill, introduced by 
Senators Edward Kennedy and Gordon Smith. The Kennedy-Smith amendment 
was adopted on a bipartisan vote of 57-42, with 13 Republicans voting 
in favor. This legislation would enhance the ability of the local, 
state and federal law enforcement officials to investigate and 
prosecute violent acts of hate crimes committed against persons because 
of their race, color, religion, national origin, gender, sexual 
orientation or disability.
  Despite the fact that more than 190 Members of the House have 
cosponsored the similar House version of the hate crimes legislation, 
H.R. 1082, and despite repeated requests that Judiciary Committee 
Chairman Hyde and Speaker Hastert allow consideration of this 
bipartisan legislation, they have refused. In fact, it is because the 
Republican Leadership has said no for the past several years that this 
important legislation has not yet to become law.
  I remember the senseless killings of three African American children 
who were killed on Sunday morning by a bomb while they participated in 
services at the 16th Street Baptist Church. Only recently have 
individuals been indicted to face trial in the nearly 40 year old 
murders. This terrible act galvanized the civil rights movement and 
began a shout for justice, which may at last be answered in a court of 
law as two Ku Klux Klansmen in Alabama's Jefferson County are finally 
being brought to justice for the 196 bombing.
  As the years passed from the time of the bombing, it was felt that 
America had made great strides until the night of June 7, 1998 when 
this Nation's deepest sin was revealed by the murder of James Byrd Jr.
  There is no case, which more graphically reminds this Nation that the 
submerged intolerance caused by racism that steeps throughout the 
fabric of our society can erupt into gangrenous crimes of hate violence 
like the murder of James Byrd in Jasper, TX.
  The lynching of James Byrd struck at the consciousness of our Nation, 
but we have let complacency take the place of unity in the face of 
unspeakable evil. It was difficult to imagine how in this day and age 
that two white supremacists beat Byrd senseless, chained him by the 
ankles to a pickup truck and then dragged him to his death over three 
miles of country back roads.
  Since James Byrd Jr.'s death our Nation has experienced an alarming 
increase in hate violence directed at men, women and even children of 
all races, creeds and colors.
  Ronald Taylor traveled to the eastside of Pittsburgh, in what has 
been characterized, as an act of hate violence to kill three and wound 
two in a fast food restaurant. Eight weeks later, in Pittsburgh Richard 
Baumhammers, armed with a .357-caliber pistol, traveled 20 miles across 
the west side of Pittsburgh which now leaves him charged with killing 
five. His shooting victims included a Jewish woman, an Indian, 
``Vietnamese,'' Chinese and several black men. Matthew Shepard also 
suffered a hateful and violent death. We need this legislation to 
further protect the people of America.
  The decade of the 1990's saw an unprecedented rise in the number of 
hate groups preaching violence and intolerance, with more than 50,000 
hate crimes reported during the years 1991 through 1997. The summer of 
1999 was dubbed ``the summer of hate'' as each month brought forth 
another appalling incident, commencing with a three-day shooting spree 
aimed at minorities in the Midwest and culminating with an attack on 
mere children in California. From 1995 through 1999, there has been 206 
different arson or bomb attacks on churches and synagogues throughout 
the United States--an average of one house of worship attacked every 
week.
  Like the rest of the nation, some in Congress have been tempted to 
dismiss these atrocities as the anomalous acts of lunatics, but news 
accounts of this homicidal fringe are merely the tip of the iceberg. 
The beliefs they act on are held by a far larger, though less visible, 
segment of our society. These atrocities, like the wave of church 
burnings across the South, illustrate the need for continued vigilance 
and the passage of the Hate Crimes Prevention Act.
  This legislation will make it easier for federal authorities to 
assist in the prosecution of racial, religious and ethnic violence, in 
the same way that the Church Arson Prevention Act of 1996 helped 
federal prosecutors combat church arson: by loosening the unduly rigid 
jurisdictional requirements under federal law. Current law (18 U.S.C.A. 
245) only covers a situation where the victim is engaging in certain 
specified federally protected activities. The legislation will also 
help plug loopholes in state criminal law, as ten states have no hate 
crime laws on the books, and another 21 states fail to specify sexual 
orientation as a category for protection. This legislation currently 
has 191 co-sponsors, but has had no legislative activity in this House.
  It is long past time that Congress passed a comprehensive law banning 
such atrocities. It is a federal crime to hijack an automobile or to 
possess cocaine, and it ought to be a federal crime to drag a man to 
death because of his race or to hang a person because of his or her 
sexual orientation. These are crimes that shock and shame our national 
conscience and they should be subject to federal law enforcement 
assistance and prosecution.
  Mr. Speaker, the Conyers motion is truly the only chance for members 
of the House to vote on a hate crimes bill in the 106th Congress. 
Accordingly, I call upon my colleagues to seize this opportunity and 
vote in favor of the motion.
  Mr. CONYERS. Mr. Speaker, I yield such time as he may consume to the 
gentleman from Guam (Mr. Underwood).
  Mr. UNDERWOOD. Mr. Speaker, I rise in strong support of the motion to 
instruct of the gentleman from Michigan (Mr. Conyers) in the name of 
justice and fairness.
  I would like to thank the gentleman from Michigan, Mr. Conyers, for 
offering this motion to instruct Committee Conferees. I strongly 
support this motion which is based upon the Senate Hate Crimes 
Amendment introduced by Senators Edward Kennedy and Gordon Smith. this 
amendment would:
  Expand current hate crime laws to include discrimination based on 
gender, sexual orientation and disability;
  Allow federal authorities more jurisdiction in investigating and 
persecuting hate crimes; and
  Provide grants up to $100,000 to train local law enforcement 
officials in identifying, investigating, prosecuting and preventing 
hate crimes, including hate crimes committed by juveniles.
  Such legislation is particularly important in light of the rash of 
hate crimes committed in recent months. Hate crimes, such as the events 
in Pittsburgh, Pennsylvania, where one African American, one Jewish 
woman, and three Asian American men were killed on April 28, 2000, 
highlights the critical need for hate crimes legislation, not only for 
the Asian Pacific American Community, but for all Americans.
  This hate crimes amendment was patterned after the Hate Crimes 
Prevention Act of 1999 (H.R. 1082/S. 622). It enjoys the broad support 
of 175 civil rights, civic and law enforcement organizations, including 
the Organization of Chinese Americans, India Abroad Center for 
Political Awareness, International Association of Chiefs of Police, 
Federal Law Enforcement Officers Association and Police Foundation.
  As Chairman of the Congressional Asian Pacific American Caucus, I 
speak on behalf of the national Asian Pacific American community in 
urging all members to support this motion. Strengthening Hate Crime 
laws is a common sense policy and step in the right direction for all 
Americans.
  Again, I appreciate the opportunity to address the Committee and urge 
all Members to support this motion to instruct.
  Mr. GRAHAM. Mr. Speaker, I yield myself such time as I may consume.
  One thing will happen when this is over. There will not be hate 
between us. We will come together, and we will work together where we 
can, and we will disagree when we have to.
  I want to clear up the Record the best I can and explain what my 
motion does what I think is very needed. One, there is no objective 
evidence that the Committee on the Judiciary or anyone else, as we see, 
that the States are ignoring violent assaults based on people's race, 
sex, gender, national origin, religion or disability. There is no 
State, there is no repeated pattern of where one gets to pound on a 
particular group and nobody does anything about it. That is a fallacy.
  Let me tell my colleagues about the legal consequences of what we are 
about to do in my opinion, and my colleagues need to read the statute 
themselves. This allows the Federal Attorney General, unlike the 
current statute, it is not merely including sexual orientation and 
disability in a list of existing Federal hate crime legislation. It is 
changing fundamentally the way that the legislation operates to allow 
the Attorney General, whoever he or she might be, to reach out and 
preempt a State lawsuit.
  There are definitely two sovereigns in play; but legally speaking, if 
the Attorney General, motivated by headlines or a disgust for the death 
penalty or

[[Page 17822]]

whatever political reasons may exist in an emotional, high profile 
case, can stop that prosecution and do it in Federal court, leaving the 
State to have to clean up the mess later. And the expense goes through 
the roof and the likelihood of that happening is zero.
  It allows too much authority in the hands of the Attorney General 
with no Federal nexus like all the other Federal statutes have. It does 
a terrible thing. It divides us based on the motivation of a 
perpetrator and the class of the victim, and the Columbine situation is 
the perfect situation, unfortunately, to talk about this. Disturbed, 
mean, hateful people who hated life, focused on jocks, focused on 
somebody who was African American, focused on a girl praying, killed 
them all. They deserve to be prosecuted by the people in the community 
where it happened, and the Federal Government has no reason to get 
involved unless one can show throughout the land that people such as 
that get away with it, and they do not.
  Mr. Speaker, I will tell my colleagues, as someone was involved in 
the criminal law before I came to Congress, that if we create this 
system, if we create this dynamic, we are going to have a lot of 
mischievous behavior out there where people are manufacturing hate 
crimes because it is a better deal if they can get in the Federal 
system, because they will not face the death penalty, as the men who 
are in Texas are facing the death penalty for dragging the African 
American gentleman to his death.
  Please, look at what we are doing here today. Do not divide America. 
Stand up for the 14th amendment the way it was written for all of us, 
and make sure the Federal Government, because of headline-grabbing 
Attorney Generals in the future, regardless of party, cannot come and 
destroy our communities' abilities to heal their wounds and to deal 
with their bad actors and to create justice the way it sees fit in its 
backyard.
  The SPEAKER pro tempore (Mr. Simpson.) Without objection, the 
previous question is ordered on the motion.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to instruct 
offered by the gentleman from South Carolina (Mr. Graham).
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. FRANK of Massachusetts. Mr. Speaker, I object to the vote on the 
ground that a quorum is not present and make the point of order that a 
quorum is not present.
  The SPEAKER pro tempore. Evidently a quorum is not present.
  The Sergeant at Arms will notify absent Members.
  The vote was taken by electronic device, and there were--yeas 196, 
nays 227, not voting 10, as follows:

                             [Roll No. 470]

                               YEAS--196

     Aderholt
     Archer
     Armey
     Bachus
     Baker
     Ballenger
     Barcia
     Barr
     Barrett (NE)
     Barton
     Bereuter
     Berry
     Bilirakis
     Bliley
     Blunt
     Boehner
     Bonilla
     Boyd
     Brady (TX)
     Bryant
     Burr
     Burton
     Buyer
     Callahan
     Calvert
     Camp
     Campbell
     Canady
     Cannon
     Chabot
     Chambliss
     Chenoweth-Hage
     Coble
     Coburn
     Collins
     Combest
     Cook
     Cooksey
     Costello
     Cox
     Cramer
     Crane
     Cubin
     Cunningham
     Davis (VA)
     Deal
     DeLay
     DeMint
     Dickey
     Doolittle
     Dreier
     Duncan
     Dunn
     Ehrlich
     Emerson
     English
     Everett
     Ewing
     Fletcher
     Fossella
     Fowler
     Ganske
     Gekas
     Gibbons
     Gillmor
     Goode
     Goodlatte
     Goodling
     Goss
     Graham
     Granger
     Green (WI)
     Gutknecht
     Hall (TX)
     Hansen
     Hastings (WA)
     Hayes
     Hayworth
     Hefley
     Herger
     Hill (MT)
     Hilleary
     Hoekstra
     Horn
     Hostettler
     Hulshof
     Hunter
     Hutchinson
     Hyde
     Isakson
     Istook
     Jenkins
     John
     Jones (NC)
     Kasich
     King (NY)
     Kingston
     Knollenberg
     LaHood
     Largent
     Latham
     Lewis (CA)
     Lewis (KY)
     Linder
     Lipinski
     Lucas (KY)
     Lucas (OK)
     Manzullo
     Martinez
     McCrery
     McHugh
     McInnis
     McIntyre
     McKeon
     Metcalf
     Mica
     Miller (FL)
     Miller, Gary
     Moran (KS)
     Myrick
     Nethercutt
     Ney
     Northup
     Norwood
     Nussle
     Ose
     Oxley
     Packard
     Paul
     Pease
     Peterson (MN)
     Peterson (PA)
     Petri
     Phelps
     Pickering
     Pitts
     Pombo
     Portman
     Radanovich
     Ramstad
     Riley
     Rogan
     Rogers
     Rohrabacher
     Roukema
     Royce
     Ryan (WI)
     Ryun (KS)
     Salmon
     Sanford
     Scarborough
     Schaffer
     Sensenbrenner
     Sessions
     Shadegg
     Shimkus
     Shows
     Shuster
     Simpson
     Skeen
     Skelton
     Smith (MI)
     Smith (TX)
     Souder
     Spence
     Stearns
     Stenholm
     Stump
     Sununu
     Sweeney
     Talent
     Tancredo
     Tanner
     Tauzin
     Taylor (MS)
     Taylor (NC)
     Terry
     Thomas
     Thornberry
     Thune
     Tiahrt
     Toomey
     Traficant
     Vitter
     Walden
     Wamp
     Watkins
     Watts (OK)
     Weldon (FL)
     Weller
     Whitfield
     Wicker
     Wilson
     Wolf
     Young (AK)
     Young (FL)

                               NAYS--227

     Abercrombie
     Ackerman
     Allen
     Andrews
     Baca
     Baird
     Baldacci
     Baldwin
     Barrett (WI)
     Bartlett
     Bass
     Becerra
     Bentsen
     Berkley
     Berman
     Biggert
     Bilbray
     Bishop
     Blagojevich
     Blumenauer
     Boehlert
     Bonior
     Bono
     Borski
     Boswell
     Boucher
     Brady (PA)
     Brown (FL)
     Brown (OH)
     Capps
     Capuano
     Cardin
     Carson
     Castle
     Clay
     Clayton
     Clement
     Clyburn
     Condit
     Conyers
     Coyne
     Crowley
     Cummings
     Danner
     Davis (FL)
     Davis (IL)
     DeFazio
     DeGette
     Delahunt
     DeLauro
     Deutsch
     Diaz-Balart
     Dicks
     Dingell
     Dixon
     Doggett
     Dooley
     Doyle
     Edwards
     Ehlers
     Etheridge
     Evans
     Farr
     Fattah
     Filner
     Foley
     Forbes
     Ford
     Frank (MA)
     Franks (NJ)
     Frelinghuysen
     Frost
     Gallegly
     Gejdenson
     Gephardt
     Gilman
     Gonzalez
     Gordon
     Green (TX)
     Greenwood
     Gutierrez
     Hall (OH)
     Hastings (FL)
     Hill (IN)
     Hilliard
     Hinchey
     Hinojosa
     Hobson
     Hoeffel
     Holden
     Holt
     Hooley
     Houghton
     Hoyer
     Inslee
     Jackson (IL)
     Jackson-Lee (TX)
     Jefferson
     Johnson (CT)
     Johnson, E.B.
     Jones (OH)
     Kanjorski
     Kaptur
     Kelly
     Kennedy
     Kildee
     Kilpatrick
     Kind (WI)
     Kleczka
     Klink
     Kolbe
     Kucinich
     Kuykendall
     LaFalce
     Lampson
     Lantos
     Larson
     LaTourette
     Leach
     Lee
     Levin
     Lewis (GA)
     LoBiondo
     Lofgren
     Lowey
     Luther
     Maloney (CT)
     Maloney (NY)
     Markey
     Mascara
     Matsui
     McCarthy (MO)
     McCarthy (NY)
     McCollum
     McDermott
     McGovern
     McKinney
     McNulty
     Meehan
     Meek (FL)
     Meeks (NY)
     Menendez
     Millender-McDonald
     Miller, George
     Minge
     Mink
     Moakley
     Mollohan
     Moore
     Moran (VA)
     Morella
     Murtha
     Nadler
     Napolitano
     Neal
     Oberstar
     Obey
     Olver
     Ortiz
     Pallone
     Pascrell
     Pastor
     Payne
     Pelosi
     Pickett
     Pomeroy
     Porter
     Price (NC)
     Pryce (OH)
     Quinn
     Rahall
     Rangel
     Regula
     Reyes
     Rivers
     Rodriguez
     Roemer
     Ros-Lehtinen
     Rothman
     Roybal-Allard
     Rush
     Sabo
     Sanchez
     Sanders
     Sandlin
     Sawyer
     Saxton
     Schakowsky
     Scott
     Serrano
     Shaw
     Shays
     Sherman
     Sherwood
     Sisisky
     Slaughter
     Smith (NJ)
     Smith (WA)
     Snyder
     Spratt
     Stabenow
     Stark
     Strickland
     Stupak
     Tauscher
     Thompson (CA)
     Thompson (MS)
     Thurman
     Tierney
     Towns
     Turner
     Udall (CO)
     Udall (NM)
     Upton
     Velazquez
     Visclosky
     Walsh
     Waters
     Watt (NC)
     Waxman
     Weiner
     Weldon (PA)
     Wexler
     Wise
     Woolsey
     Wu
     Wynn

                             NOT VOTING--10

     Engel
     Eshoo
     Gilchrest
     Johnson, Sam
     Lazio
     McIntosh
     Owens
     Reynolds
     Vento
     Weygand

                              {time}  1443

  Messrs. ANDREWS, MOORE, FRANKS of New Jersey, and REGULA, Ms. 
SLAUGHTER, Ms. RIVERS, and Ms. DANNER changed their vote from ``yea'' 
to ``nay.''
  Mr. LEWIS of California and Mr. ARCHER changed their vote from 
``nay'' to ``yea.''
  So the motion to instruct was rejected.
  The result of the vote was announced as above recorded.
  A motion to reconsider was laid on the table.
  Stated against:
  Mrs. ROUKEMA. Mr. Speaker, on Rollcall No. 470 I inadvertently 
pressed the ``yea'' button. I intended to vote ``nay.''

                          ____________________