[Congressional Record (Bound Edition), Volume 150 (2004), Part 9]
[Senate]
[Pages 12110-12117]
[From the U.S. Government Publishing Office, www.gpo.gov]




   NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005--Continued

  The PRESIDING OFFICER. Under the previous order, the time until 3:40 
p.m. will be equally divided between the proponents and opponents on 
the Smith amendment.
  Who yields time?
  The Senator from Virginia.


                           Amendment No. 3183

  Mr. WARNER. Mr. President, it is my understanding that the time is 
equally divided between the distinguished Senator from Oregon on this 
side and the Senator from Massachusetts on the other. Am I correct on 
that?
  Mr. LEVIN. As I understand it, Mr. President, both are proponents of 
the amendment. I do not know who would be controlling the opponents' 
time. Is there opposition? If so, I wonder if the chairman knows who 
the opponents are who would be controlling the time.
  Mr. WARNER. Mr. President, the distinguished Senator from Michigan 
does raise a valid point. I will provide the Senate with the individual 
that controls the opponents' time momentarily.
  Mr. LEVIN. In terms of the proponents' time, I understand that will 
be divided between the Senator from Oregon and the Senator from 
Massachusetts.
  The PRESIDING OFFICER. The Senator from Oregon will control the time.
  The Senator from Oregon.
  Mr. SMITH. Mr. President, first may I express my appreciation to 
those who have agreed to this time agreement about an issue that is 
long overdue for our Senate to take up once again and to vote on its 
merits. This is the issue of hate crimes. This is an issue that is much 
in the news of late because it is an issue that too often is visited on 
the American people, or classes of Americans within the American 
community.
  We are in the midst of a war on terror, and as we fight that war on 
terror abroad, it is important we not forget the war on terror at home. 
What Senator Kennedy and I are trying to do in this bill is to simply 
remind the American people that there are classes of Americans who are 
uniquely vulnerable, who are singled out for violence, and for whom we 
need to do something.
  It is a fact that hate crimes statutes are on the books of well over 
30 States in America. They are even on the books of the U.S. 
Government. The Federal Government now has authority to pursue, 
prosecute, and punish those who commit hate crimes on the basis of 
race, religion, or national origin. What we are proposing to do in this 
bill is to add a few categories.
  There is one category, one class of Americans that is the problem in 
this amendment, as some view it a problem, and that is the gay and 
lesbian community.
  Now, many may wonder why we are bringing up this issue on a Defense 
authorization bill. And the answer is simply because some of the worst 
hate crimes in recent memory have been committed in the U.S. military. 
It clearly is not unique to the American military because it happens 
all over the place, even in my State of Oregon, and notably, for 
example, in Texas with the death, murder, and dragging of James Byrd, 
and the savage beating of Matthew Shepard in Wyoming. But why the 
military bill? My answer is, why not? This is a bill that needs to 
move. It is important that we pass the defense authorization. It is 
important that we deal with this issue of domestic terrorism.
  A hate crime is when someone with an ill-motive singles out an 
American citizen--or any person, but an America citizen--who, because 
of his sexual orientation, is hated and even killed. This happens way 
too often. In fact, if it happens at all, it is too often.
  As I recounted yesterday in the case of several of our servicemen, a 
Navy man and an Army private were literally beaten to death. It is 
appropriate that we take up this issue on the Defense authorization 
bill.
  Many of my colleagues will ask, Why are you trying to punish thought? 
I think it is important to recount that we are not punishing thought. 
We are not punishing speech. We are, in fact, punishing thought and 
speech that amounts to conduct, and that conduct then becomes criminal.
  Many people say this is not appropriate to put in statute. We put it 
in statute a long time ago in the Federal Government. We did it in 
response to civil rights laws that were not being enforced in the 
Southern States--or a few of them. And the Federal Government needed to 
have some mechanism--some legal reach--to punish and pursue those who 
committed hateful things against the communities of African-American 
citizens. What this did was generate litigation when the Federal 
Government pursued it. It took the litigation all the way to the United 
States Supreme Court.
  I think it is important that we recount that we are not going after 
anybody's hateful thinking or their hateful speaking but for the 
combination of those things--with hateful conduct which amounts to 
crime.
  When this case came to the United States Supreme Court, you might 
have expected that conservatives would have struck it down. But it was 
an overwhelming vote by the United States Supreme Court, and the 
majority opinion affirming hate crimes as a category was written by 
none other than William Rehnquist, our current Chief Justice. It is 
hard to imagine a more conservative Justice. He made it very clear.
  Citing the great Jurist William Blackstone, Rehnquist opined that 
``it is reasonable that among crimes of different natures those should 
be most severely punished which are the most destructive of the public 
safety and happiness.''
  Further, Rehnquist added:

       Deeply ingrained in our legal tradition is the idea that 
     the more purposeful is the criminal conduct the more serious 
     is the offense and, therefore, the more severely it ought to 
     be punished.

  Obviously, in the case of James Byrd, when his murderers were 
ultimately subject to the death penalty, you can't punish that any more 
severely. But what was different in that case, because it involved 
race, was the Federal Government had the statutory right to be there to 
back up and help to reinforce the State of Texas should they have 
needed it.
  In the case of Matthew Shepard--in the case of Wyoming where there is 
no authorization for the Federal Government to help because our hate 
crimes do not include sexual orientation--the sheriff's office in 
Laramie--I met the sheriff, a good Republican--pled for this law. He 
said: We needed the help. It was a case of national importance, and we 
needed the backup of the Federal Government to manage all that happened 
around the pursuit and the prosecution and the punishment of Matthew 
Shepard's murderers.
  But what is really important to emphasize--and some of my friends 
will come to the Senate floor and say we are punishing thought; we are 
infringing upon the first amendment because we are going after people 
because of what they speak. The answer, as Rehnquist and others have 
said, is, no, we are not. We only do it if they act upon it. When 
criminal conduct is more serious because it is so heinous with the 
evidence around it, you can even more severely punish that crime.
  I think it is very important to hit on one other thing before I turn 
to my colleague, Senator Kennedy.
  Many people wonder why we would do this, why we would add this 
category.
  My mother used to teach me to treat people the way they would like to 
be treated--not just the way I would like to be treated. I cannot think 
of a more Christian or decent thing to do than come to the aid of 
someone who is in physical peril, or to prosecute their case when they 
have been wronged, regardless of what you think of their life or 
lifestyle.
  I believe the moral imperative that underpins hate crimes legislation 
is simply this, and it comes from sacred writ: When people are being 
stoned in the public square, we ought to come to their rescue. That 
includes the Federal Government, but that does not include the Federal 
Government according to our statutes today. What Senator Kennedy and I 
propose to do would change that--and change it for the good.
  This is not about endorsing anyone's lifestyle. This is about 
protecting

[[Page 12111]]

Americans in any class or category in which they may find themselves.
  We need to do this. We need to pass this amendment. It is long 
overdue.
  I understand the reluctance on the part of some of my colleagues 
because of their dislike of the entire category of hate crimes, but I 
disagree with them. I understand them, but I disagree with them because 
of this: The position, if you do not like hate crimes as a category and 
don't want to expand it to a new class of people, says you really have 
to then strike from our books the hate crimes protections for race, 
religion, and national origin. I don't think any of my colleagues would 
come down here and try to do that, particularly after those categories 
have been found constitutional across the street by the judicial branch 
of Government.
  But I think, because you can demonstrate clearly the gay and lesbian 
community is demonstrably more vulnerable to crime because of their 
sexual orientation, we owe it to them as Americans--our American 
brothers and sisters--to add this extra measure of law and protection.
  I urge my colleagues, I plead with them, to vote for this hate crimes 
legislation, known officially as the Local Law Enforcement Enhancement 
Act. It is symbolic, yes, but it can be substantive because the law can 
teach. The law is a good teacher, and the laws will then teach 
Americans that bigotry will not be tolerated. By changing the law, we 
can change hearts and minds, and I urge my colleagues to do so--to 
change hearts and minds, even change maybe their own minds and join 
with me and Senator Kennedy in voting in favor of this most important 
and timely amendment.
  Congress must take up and carry the torch of freedom and liberty so 
cherished by our forefathers. It is only through our ever vigilance 
against hate and those acts that threaten life, liberty and happiness 
of all Americans that we can achieve a just society.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Massachusetts.
  Mr. KENNEDY. Mr. President, I yield myself 6 minutes on the 
legislation.
  I want the history of this legislation to understand what a very 
important and significant role my friend and colleague, the principal 
sponsor of this legislation, the Senator from Oregon, Gordon Smith, has 
played in giving us the opportunity on the floor of the Senate to vote 
on an issue of enormous importance and consequence in terms of justice 
in our country, and to be able to express what this Nation is really 
about; that is, that when we are going to be facing hate crimes, we are 
going to use every possible tool we have to deal with these crimes. We 
are not going to battle them with one hand tied behind our back.
  I have enjoyed the chance to work with Senator Smith on this 
legislation over a number of years. We have had some successes in 
trying to get it through the Senate, but we have failed. However, I 
admire my friend and colleague's perseverance. As Shakespeare says, 
perseverance, Lord, make honor bright, and the Senator from Oregon has 
enhanced the honor in the Senate by giving us an opportunity to address 
this issue.
  For those listening to these remarks, they may not understand how 
complicated it is to get a real vote on some matters which are basic 
and of fundamental importance. On many occasions when they have opposed 
the legislation, Members try to undermine the central thrust of the 
legislation, divert it with parliamentary tactics.
  The Senator, because of the respect Members have for him, has been 
able to ensure that the Senate will address this issue frontally, and 
it should, because it is a defining issue in terms of our country and 
our society about what this country represents. On the issues dealing 
with hate crimes, we find them to be completely unacceptable in this 
country.
  We have learned from past experience, in other hate crimes 
legislation, where the gaps in the legislation have been. This 
legislation is very targeted, limited, but an important legislative 
effort to try to address those serious loopholes in a way which is both 
constitutional, is limited, but also effective and can make an 
important difference in terms of reducing the incidence of hate crimes.
  I am sure my friend remembers a number of years ago we had the 
proliferation of church burnings in this country, primarily focused in 
the southern part of this Nation. After a good deal of deliberation, we 
were able to get the FBI involved in church burnings. The difference we 
saw was virtually almost overnight. Once America understood in 
different places of the country that we were serious about making sure 
we would use the full resources of our National Government to halt 
church burnings, it is amazing how they were effectively halted. There 
are still a scattering of them in some communities but effectively the 
epidemic we were seeing at that time has halted.
  The Senator from Oregon and I believe we can make the similar type of 
progress on the issues of hate crimes. That is why this is such an 
opportunity.
  I will take a few moments later to describe the appropriateness of 
this amendment on this legislation and the particular challenges we 
have been faced with in the military. As an Armed Services Committee 
member who has reviewed and watched that closely, I will come back to 
this issue. However, let me point out this is entirely relevant to this 
legislation. We have seen that hate crimes have taken place in the 
military. A number of occasions I will describe or place in the Record.
  On one particular occasion it was based upon race. We saw a 
commanding general perform in an extraordinarily exemplary way, and on 
another occasion, when dealing with a young gay man, the performance 
was abysmal. The fact is, we ought to make sure that certainly the 
Armed Forces are going to understand we are not going to tolerate the 
issues of hate crimes in the military or in any other place in our 
society.
  It has been argued that our bill is discriminatory because it singles 
out hate crimes from other crimes when, in fact, all crimes are hate 
crimes. That is not true. It is not supported by the history or the 
law. Every crime is tragic and harmful and has its consequences because 
not all crime is based on hate. Hate crimes are based on bigotry or 
prejudice. A hate crime occurs when the perpetrator intentionally 
selects the victim because of who the victim is.
  Mr. WARNER. If the Senator will yield, the Chair inquired as to the 
management of the time in opposition, and I ask unanimous consent that 
any Senator desiring to speak in opposition could speak for up to 10 
minutes. If he or she desires additional time, we can seek an 
additional UC for another 10 minutes, and if a quorum is put in it will 
be charged equally to both sides.
  The PRESIDING OFFICER. Is there objection?
  Mr. SMITH. I further ask that the request be modified to reserve to 
Senator Kennedy and myself any time unused after his remarks.
  Mr. WARNER. Absolutely.
  Mr. KENNEDY. I don't expect we will have numerous speakers, but it 
could happen that all the time will be taken up by people using 10 
minutes.
  So as I understand what the Senator is saying, those who want to 
speak may speak up to 10 minutes, but within the general timeframe the 
total time is divided.
  Mr. WARNER. Yes.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. I ask that interlude not be charged against my time.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. As with acts of terrorism, hate crimes have an impact 
far greater than the impact on the individual victims and their 
families. They are crimes against entire communities, against the whole 
Nation, and against the fundamental ideals of liberty and justice for 
all on which America was founded.
  As Attorney General Ashcroft has said, criminal acts of hate run 
counter to what is best in America, our belief in equality and freedom.

[[Page 12112]]

  According to the surveys conducted by the Department of Justice, 85 
percent of law enforcement officials believe hate-motivated violent 
crimes are more serious than similar crimes not motivated by bias. One 
need look no further than the current conflict in the Middle East or 
recall the ethnic cleansing campaigns in Bosnia, Rwanda, what is 
happening in the Sudan today, study the Holocaust itself, to understand 
that violence motivated by hate is different and is more destructive. 
Or consider the hate crimes committed in America. Most of them are 
committed by multiple offenders against a single victim.
  Because the victims are attacked simply because of who they are, 
there is little that can be done to avoid being a victim of a hate 
crime. Hate crimes are twice as likely as other crimes to involve 
injury to the victim and four times as likely to require 
hospitalization.
  In the 1993 decision in Wisconsin v. Mitchell, a unanimous Supreme 
Court recognized that bias-motivated crimes are more likely to provoke 
retaliatory crimes, inflict distinct emotional harms on their victims, 
and incite community unrest.
  A hate crime against one member of a group sends a strong message to 
the other members that you are next, that certain parts of the country 
aren't safe for you to work or travel or live in, that you better watch 
your step. This is domestic terrorism, plain and simple, and it is 
unacceptable.
  Centuries ago, Blackstone commented it was unreasonable that among 
crimes of a different nature, those should be most severely punished, 
which are the most destructive of the public safety and happiness.
  The simple fact is that hate crimes are different. They are more 
destructive than other crimes. The Federal Government has a 
responsibility to send a clear and unambiguous message that hate-
motivated violence in any form from any source will not be tolerated.
  Congress recognized the special harm caused by hate-motivated bias 
when it passed the current hate crimes law following the assassination 
of Dr. King in 1968, when it passed the Hate Crimes Statistics Act of 
1990, and when it passed the Hate Crimes Sentencing Enhancement Act of 
1994. Now it is time for Congress to take the next step toward 
protecting all Americans from the problems of hate-motivated violence, 
by passing the Local Law Enforcement Enhancement Act to address the 
obvious deficiencies in the current Federal hate crimes law.
  As we mentioned, we are going to have our time. We hope those who 
might be in opposition would come over to the Chamber to debate us.
  I think before I yielded myself 7 minutes. Do I still have a little 
time left on that?
  The PRESIDING OFFICER. The Senator has consumed the time.
  Mr. KENNEDY. Mr. President, I yield myself 2 additional minutes.
  First of all, I know the Senator from Oregon, Mr. Smith, has 
described this amendment, but what this amendment does is it authorizes 
the Justice Department to assist State and local authorities in hate 
crimes cases. It authorizes Federal prosecutions only when a State does 
not have jurisdiction or when a State asks the Federal Government to 
take jurisdiction or when a State fails to act against hate-motivated 
violence.
  In other words, the amendment establishes an appropriate backup for 
State and local law enforcement to deal with hate crimes in cases where 
States request assistance or cases that would not otherwise be 
effectively investigated and prosecuted. So this is very limited and 
targeted.
  I want to remind the Senate that the original hate crimes preventive 
legislation was introduced in 1997 in the 105th Congress. The Senate 
Judiciary Committee held hearings in the 105th Congress and the 106th 
Congress. We had testimony from State and local law enforcement, the 
Justice Department, victims and families, and respected constitutional 
lawyers alike.
  Our hate crimes bill has passed the Senate twice. In July of 1999, we 
passed it as an amendment to the Commerce-Justice-State appropriations 
bill. The amendment was stripped out in conference. In June of 2000, 
the bill was passed as an amendment to the Department of Defense 
authorization bill by a vote of 57 to 42. So there is precedent for 
this action. We had good bipartisan support.
  Several months later, the House of Representatives voted 232 to 192 
to instruct the conferees to accept the hate crimes bill. Again, 
however, the bill was stripped in conference.
  In the 107th Congress, the Local Law Enforcement Act was introduced 
with 51 original cosponsors and favorably reported out of the Judiciary 
Committee by a vote of 12 to 7. In June of 2000, the Senate failed to 
invoke cloture on it with a vote of 54 to 43, with a clear majority 
supporting it.
  So this issue has been studied. We have had extensive hearings. We 
have listened to the constitutional authorities. We have listened to 
local, State, and Federal officials with regard to this issue. We have 
also read the newspapers of this country and have studied what has been 
happening in the growth of hate crimes.
  The PRESIDING OFFICER. The Senator has consumed the time.
  Mr. KENNEDY. Mr. President, I will come back to that in a moment.
  Mr. SMITH. Mr. President, will the Senator yield for a question?
  Mr. KENNEDY. Yes, I yield.
  Mr. SMITH. I say to the Senator, I wonder, as you recounted some of 
these horrendous acts that have occurred, if you are familiar with the 
Wisconsin case that is called Wisconsin v. Todd Mitchell. It is the 
1993 case in which Chief Justice William Rehnquist authored the 
decision upholding hate crimes legislation. As it says in this 
preamble:

       The question presented in this case is whether this penalty 
     enhancement is prohibited by the First and Fourteenth 
     Amendments. We hold that it is not.

  Sir, this was a unanimous decision. And Justice Rehnquist--again, you 
would probably agree with me, I say to the Senator--is one of the more 
conservative justices. He wrote:

       Thus, although the statute punishes criminal conduct, it 
     enhances the maximum penalty for conduct motivated for a 
     discriminatory point of view more severely than the same 
     conduct engaged in for some other reason or for no reason at 
     all. Because the only reason for the enhancement is the 
     defendant's discriminatory motive for selecting his victim. . 
     . .

  And that was the man's race.
  Justice Rehnquist held it is entirely appropriate to look at the 
man's motive in ultimately ascribing the severity of the penalty that 
was handed down for this assault that was made by a White man on a 
Black man. It was prosecuted under the Federal Hate Crimes Act.
  I am sure the Senator is familiar with that. Maybe he can help me to 
explain to my conservative colleagues how it is that we are trying to 
legislate thought or punish thought and punish speaking. Would the 
Senator agree with me that Justice Rehnquist and I are both right in 
saying we are only punishing conduct and the evidence that comes from 
thought and speech that can be used legitimately, constitutionally to 
enhance penalties?
  Mr. KENNEDY. Mr. President, I thank the Senator for raising this 
issue because this is enormously important. The Senator from Oregon, in 
terms of protection of the first amendment, has reviewed the holding in 
the Wisconsin case.
  As the Senator remembers, this principle was reaffirmed this last 
year by the Supreme Court in the cross burning decision in Virginia v. 
Black. As we know, as it has been interpreted, this act punishes 
violence, not speech. It covers only violent acts that result in death 
or bodily injury. It does not prohibit or punish speech, expression, or 
association in any way, even hate speech--even hate speech.
  Those great lines of Oliver Wendell Holmes:

       If there is any principle of the Constitution that more 
     imperatively calls for attachment than any other it is the 
     principle of free thought--not free thought for those who 
     agree with us but freedom for the thought that we hate.

  We ensure that even the hate speech is not affected in this. It is 
the violence, the physical violence that we are

[[Page 12113]]

addressing, and it is enormously important that our colleagues 
understand that.
  Mr. President, I withhold the remainder of the time.
  I suggest that we have the quorum call, and I suggest that we have it 
on the opponents' time until it reaches where we are, and then we will 
charge it to both of us if that is acceptable.
  Mr. SMITH. Mr. President, if I can modify the request, I think in 
fairness to my colleagues who disagree with me, we better charge it 
equally.
  I ask unanimous consent that Senator Arlen Specter of Pennsylvania be 
added as a cosponsor to this amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SMITH. I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. KENNEDY. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. KENNEDY. Mr. President, I think we had 42 minutes, and we divided 
that up formally. May I ask, of the 21 minutes, how much time have I 
used?
  The PRESIDING OFFICER. The proponents have 12 minutes.
  Mr. KENNEDY. Twelve minutes. That is all that remains between both of 
us, Senator Smith and I?
  The PRESIDING OFFICER. No, for the proponents.
  Mr. KENNEDY. We are both proponents.
  The PRESIDING OFFICER. The opponents have 37 minutes.
  Mr. KENNEDY. Mr. President, I yield myself 2 minutes.
  I will put more information in the Record, but I want to point out to 
our colleagues the growth of hate crimes in this country, what the 
Southern Law Poverty Center has said has taken place. That is the 
authoritative group, more so than even the Justice Department. The 
number of hate groups in America has expanded exponentially ever since 
9/11. The figures we have here are basically dated figures, because 
they don't go in until after 9/11, but what we do see is the total 
number of hate crimes statistics during the period of the 1990s have 
been going higher and higher. Hate crimes based on sexual orientation 
have gone up significantly over the last several years. The venom and 
the hate against gays and lesbians has increased dramatically.
  The backlash since 9/11 has been dramatic with regard to hate crimes 
against Muslims. This chart shows the dramatic increase and it is 
continuing to go up at an extraordinary level. Hate crimes against Arab 
Americans and hate crimes against Arabs have gone up dramatically in 
the last 2 years. Beyond that, hate crimes against Jews in the country 
and society have gone up exponentially as well. For all of these 
groups, I will include accurate information. But this is a real 
problem.
  There is the possibility of not having a universal solution, and we 
don't suggest that with the passage of this amendment all of these 
problems are going to go away. But what we are going to say is, we 
ought to be battling this with the full force of the U.S. Government. 
When we guarantee the kinds of rights and liberties in this country 
that are in the Constitution and the Bill of Rights, we ought to make 
sure they are going to be enforced with the full power and authority of 
the United States. That is what our legislation does in dealing with 
the issue of hate crimes.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH. Mr. President, inasmuch as our colleagues are not here to 
debate Senator Kennedy and me, I hope that is a good sign. I thought I 
would recount very briefly again the appropriateness of why this is on 
the military authorization bill, recounting the stories of two service 
people. They are somewhat horrendous, but it is appropriate that 
everyone understand why this has a very logical nexus for Senator 
Kennedy and me with this piece of legislation and this amendment.
  One of these crimes resulted in the death of an Army private and the 
other the death of a Navy seaman. In 1992, Navy Seaman Allen R. 
Schindler was brutally murdered by his shipmate Terry Helvey in 
Okinawa, Japan. Helvey beat and stomped Schindler to death simply 
because he was gay. He didn't want his wallet; he didn't want his 
watch; he wanted him dead because of his sexual orientation.
  Helvey's attack was so vicious that he destroyed every organ in 
Schindler's body. He was so badly beaten that Schindler's own mother 
could identify him only by the remains of the tattoo on his arm. The 
medical examiner compared Schindler's injuries to those sustained by 
the victims of fatal airplane crashes.
  In another tragic case, PFC Barry Winchell was forced outside his 
barracks at Fort Campbell Army Base where he was stationed. In the 
early morning hours of July 5, 1999--this is very recent history--
Winchell was repeatedly beaten with a baseball bat by another Army 
private. He was beaten with such force and his injuries were so severe 
that he died shortly thereafter. Barry was only 21. He was murdered, 
again not for his watch, not for his wallet, but simply because he was 
gay.
  These are appalling examples. Again, I want to say for the Record, I 
understand the reluctance of some of my colleagues to deal with issues 
that involve a person's sexuality, but I also want to say I don't agree 
with them. I think we need to treat people civilly and in the highest 
Christian traditions, no matter what we think of their lifestyles. I 
think the finest example we can find on this issue--really on point--is 
the great New Testament example when, in my view, the greatest person 
who ever lived was confronted with a woman being stoned to death 
because of her lifestyle. He did not endorse her lifestyle, but He 
risked His life to save her life. It does seem to me that if this can 
be done in ancient Israel, we ought to be able to do the same in modern 
America and have laws that reflect the very best part of the American 
people, that we stand and help those in need. You need read no more 
into it, no more moral approval in it.
  I believe there are real family values, and I believe there are 
counterfeit family values. Arguments made to suggest that opposing hate 
crimes is a family value are truly misguided. When it comes to human 
necessities of making a living and having shelter and enjoying public 
safety, having the dignity and respect of law on your side, that is for 
all of us, I don't care how we conduct our lifestyles. That is for the 
American people. It includes gays and lesbians.
  We are not censoring speech. We are not punishing thought. We are 
punishing crime. The statutes that are constitutional in this 
government, upheld by William Rehnquist as to their constitutionality, 
are long overdue to be added to to include this category of the 
American people who are gay and lesbian. The need is easy to 
demonstrate through statistics, through crimes committed on this 
community. Those of us who stand with the President in fighting the war 
on terrorism, I say great, but don't forget the war on terrorism at 
home. It includes defending gays and lesbians and other Americans and 
classes that make them vulnerable and more likely victims of crime. We 
owe them that, and we owe them at least that. We owe them more, in 
fact.
  I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The assistant legislative clerk proceeded to call the roll.
  Mr. SESSIONS. Mr. President, I ask unanimous consent that the order 
for the quorum call be rescinded.
  The PRESIDING OFFICER (Mr. Crapo). Without objection, it is so 
ordered.
  Mr. SESSIONS. Mr. President, the Defense bill we are working on today 
is critically important for our Nation. We need to complete that bill. 
It is important for us not to be distracted from it by bringing up 
amendments about which people feel strongly and which

[[Page 12114]]

may be important, but are unrelated to defense and not germane to the 
issue before us.
  I am glad we are able to at least proceed fairly promptly to a vote 
on this issue so that we can get back to the purpose with which we are 
dealing. We have soldiers in the field who are at risk this very 
moment. They need to know we are moving forward on business that 
relates to them, that deals with the issues that threaten their lives, 
and we need to make sure that we have every possible activity and 
report in this authorization bill to help them do their jobs better. I 
wanted to say that at the beginning. Sometimes these things happen, and 
we can offer amendments, but we do not need to do too much of this, in 
my view.
  I raise two points about this so-called hate crimes amendment, and 
the reason that I will be voting against it. Different people can have 
different ideas and different values about how we should deal with this 
issue.
  First, there is no legitimacy for any attack on any person because of 
their sexual orientation in America today. That is unacceptable 
behavior. It has always been unacceptable. We need to crack down on it 
aggressively. In fact, I believe States are doing so, as they do with 
all other crimes that occur throughout our country.
  I was a Federal prosecutor for 15 years and dealt with the 
distinctions between Federal and State law on a regular basis. Most 
people may not realize that if someone robs a gas station, or someone 
shoots your daughter on her way home from school, or someone commits a 
rape, those are not Federal crimes. They are not prosecuted in Federal 
court. They cannot be prosecuted in Federal court under normal 
circumstances. They have always been given over to the States for 
prosecution. That is very important.
  We have developed and expanded over the years the reach of Federal 
law, and in some instances that is quite good, I believe--but in some 
instances it is very much in dispute. In fact, liberals and 
conservatives say Federal law is reaching over and prosecuting and 
taking over cases. There are always some State offenses that are 
prosecuted in Federal court. Regardless of the debate, what we have 
decided to do in the past is each case should be evaluated on its own. 
I will make a couple of points.
  With regard to this hate crimes legislation, Senator Hatch, the 
chairman of the Judiciary Committee, proposed what I thought was a good 
piece of legislation some time ago. That legislation said we would 
conduct a study, in effect, to see what the need of this legislation 
is. I have to tell you, Mr. President, if you want to prosecute 
somebody for assaulting, shooting, or harming another person, it is 
easier to prosecute that case if you do not have to prove what was in 
the mind of the person who did it. That is an additional element of a 
crime, one not easily proven. I know the Presiding Officer is a lawyer 
and skilled in these matters. It is an additional element to the crime 
that must be proven.
  If we were to create such a hate crime, we would basically be taking 
on an offense that would be a fundamental State crime--an assault, a 
murder, or assault with intent to kill. You would be transforming that 
kind of crime into a Federal offense, and not only would you have to 
prove all the underlying elements that would be true in a State trial, 
but you would also have to prove that the person did it for a reason of 
hate, but not just any hate. If you dislike U.S. Senators and you beat 
up one--there may be a Federal law that protects a Senator, I don't 
know.
  If there is a State legislator and someone goes and beats them up 
because they hate them, because of the way they voted, all right, that 
can be taken care of in State court. But what would make it a Federal 
offense? Well, if a person hated him, but they hated him for a 
particular reason--they hated him because of sexual orientation--that 
is why this becomes now a Federal offense rather than a State offense.
  One can make arguments that this is all right to do. We did that with 
the issue of race in America, and there was a very real reason for it. 
As a southerner myself, I am sorry to say that in fact and in reality 
there were areas in this country where crimes against African Americans 
were prosecuted either not at all or not adequately; there was not 
proper punishment being imposed in those cases and people were denied 
civil rights. At certain periods of time in our Nation's history, 
feelings were so strong that cases could not be effectively prosecuted. 
That was clear. That was established. That was a fact, unfortunately.
  So the Federal Government said those kinds of crimes involving race 
could be prosecuted in Federal court under the civil rights statute 
even though there may be an underlying State offense. That is how those 
came into effect.
  Now we are being asked to go one step further. I think maybe we ought 
not do that. Senator Hatch's study would have analyzed the question of 
whether offenses involving assaults on gays are being adequately 
prosecuted in America. If they are being adequately prosecuted--and 
most States would have tougher laws. Most States have death penalty 
laws. This bill does not provide the death penalty for the murder of 
somebody under a hate crime. So are those being adequately prosecuted?
  We know in a case in Colorado that a person committed murder because 
of the victim's sexual orientation, apparently, and was given the death 
penalty in State court. One offense occurred in my home State of 
Alabama, and he was tried and given life without parole. So I am not 
aware of those offenses being inadequately prosecuted. That is what I 
am saying.
  In addition, there is this troubling concept of what is in one's 
mind. If the Social Security office turned a person down for their 
disability and they did not get a disability paycheck and they spent 
weeks churning it in their heart and soul and their hatred built and 
built and they finally went down to the Social Security office and shot 
everybody, well, that would not meet the definition of hate crime under 
this statute. It might be a Federal offense because it is the Federal 
Social Security agency, but if it had been a local State official it 
would not be a Federal crime. There would be no Federal jurisdiction.
  So we are being asked to take that extra step into creating a new 
offense in Federal law based on the question of what is in somebody's 
mind when they commit the crime.
  Classical American jurisprudence has been simple and direct. I know 
as a student in law school I learned about these things and as a former 
prosecutor I have been thinking a lot about it lately. I think 
sometimes even we who have been former prosecutors get overly 
aggressive about passing statutes to deal with every wrong that comes 
up.
  Let's take the burglary statute that is in effect in almost every 
State in America today. It makes it a State crime to break and enter 
into a dwelling with the intent to commit a felony. Some of them are 
first degree, such as when the crime involves an occupied dwelling at 
night and those are the elements of their crime. That is what we have 
done for 200-plus years in America and England. It did not say why a 
person broke into somebody's house or even what kind of felony someone 
may be intending to commit. It could be rape; it could be robbery; it 
could be theft. So that is the clarity with which our law has 
traditionally operated.
  Now we are saying if someone assaults and kills this person because 
they were mad at him over a girlfriend and hated him for it, that is 
not a Federal offense, but if a person is angry because of someone 
else's sexual orientation, that could be a Federal offense. Maybe that 
is justified and some would find it justified, but I think before we 
continue down this road of moving into the psychological motivations 
for a specific act of committing a crime, we ought to ask ourselves: is 
it the kind of problem we know is not being effectively prosecuted and 
handled in America today, is not being prosecuted and sentenced 
effectively based on the act that was committed, so that now we need to 
figure out the motive behind the act and make it a Federal crime?

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That is what we need to be thinking about.
  I do believe Senator Hatch's legislation that he offered some time 
ago I think it even passed this body once, although it did not become 
law--said let us do a study of that and analyze where we are so we can 
deal with it.
  Well, terrorists hate us for various reasons. People hate our 
Government. Some of them hate police officers. Would it be a Federal 
crime to commit murder against a police officer? Not to my knowledge. 
It would not be a crime to do that if someone hates the police officer 
or hates the jailer who locks up a person in compliance with the law of 
the land. The jailer could be murdered and that would not be a Federal 
offense.
  This should not be seen as any kind of referendum on how we think 
about the treatment of people with various sexual orientations. This is 
a great, free country. It is a country that allows behavior people may 
agree with or not agree with. In my view, it is just as much a crime to 
injure or harm anyone whether it is as a result of their sexual 
orientation or any other behavior they may be participating in. Maybe 
someone does not like them because they are out there complaining about 
George Bush or complaining about John Kerry and they hate them for 
that. That would not be a Federal crime if action is taken against 
them.
  I do not know that we need to take this step today. In fact, I think 
we should not. It is something that deserves careful consideration and 
is not to be thrown onto the Defense bill as we are moving forward at 
this date. Let's think it through. Let's do a study, as Chairman Hatch 
has suggested. Let's see if there is a real problem out there. If there 
is a problem of failure to enforce the law, then I would say this could 
be justified. We have done it before with regard to civil rights 
actions. Maybe it would be appropriate to do it now. Frankly, I do not 
see that today. I think it is a reach in terms of need and creates the 
danger of criminalizing thought processes rather than actions.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Pennsylvania.
  Mr. SANTORUM. Mr. President, I rise to comment on the remarks of the 
Senator from Alabama. I join and agree with his remarks. I have said to 
the Senator from Oregon on more than one occasion, if I believed hate 
crimes were a proper crime for the Federal Government to be passing on, 
I would vote for this as well as the others, but I do not believe, as 
the Senator from Alabama stated, we should be criminalizing thought, 
and that is what this does. I have always said the greatest of the 
freedoms we have in this country is the freedom to believe what we want 
to believe and the freedom to think what we want to think. I know there 
are lots of motivations for people to do things and there are lots of 
bad thoughts out there in people's minds, but we do not criminalize 
those. We only criminalize them if there are actions taken. We 
criminalize the action, not the thought.
  I think protecting the freedom of belief and the freedom to think the 
way one wants to think is an important concept in our country, somewhat 
unique in the American Constitution, and I believe this hate crimes 
amendment violates that very premise. So I will vote against this 
amendment.
  I wanted to be clear, as the Senator from Alabama was clear, it is 
not because of the group that happens to be identified in this 
amendment to be subject to hate crimes. It could be any group.
  I will vote no because I believe the premise underlying this criminal 
statute is faulty. I regret to have to oppose our two colleagues who 
are trying to take a step forward and bring civility and protection to 
certain people who have been the subject of violence. But I do not 
believe this is the right way to do it.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from Oregon.
  Mr. SMITH. Mr. President, have we used all time on our side?
  The PRESIDING OFFICER. Yes. Twelve seconds remain to the opponents.
  Mr. SMITH. I ask unanimous consent to speak for 2 minutes, and I 
probably won't use that.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Mr. SMITH. Mr. President, there are few people I like more than my 
colleagues who are speaking against this amendment. They know that. 
They know I respect their right to disagree with me. But I want to 
state for the record that if I believed what Senator Kennedy and I were 
doing was criminalizing thought, I would vote against this amendment. 
What we are doing is criminalizing actions. It is always the case in 
criminal law that you look at all of the evidence, and if it can 
establish that words and thoughts have led to actions that rise to hate 
crimes--William Rehnquist, the most conservative Justice we probably 
have on the Supreme Court, and maybe some would argue that a couple 
others are more conservative--held in a unanimous Supreme Court 
decision that existing hate crimes statutes are constitutional because 
they do not punish thought. They do not impinge upon the first 
amendment. They do not impinge upon the 14th amendment because it takes 
action to commit a crime, and the words and the thoughts are simply 
evidentiary materials that go into motive to establish a crime. You 
have to establish motive.
  This is simply an enhanced version of looking at the totality of a 
crime. If it can rise to a hate crime, it ought to be prosecuted. This 
is the constitutional law of America. We are simply saying there is a 
category of Americans out there who ought to be added to settled 
constitutional law of the Federal Government. We owe them at least 
this; they deserve no less than a vote on this amendment.
  I yield the floor.
  Ms. MIKULSKI. Mr. President, I rise in strong support of the Smith 
amendment on hate crimes. This amendment mirrors the Local Law 
Enforcement Enhancement Act, which I have been proud to co-sponsor. 
This bill puts America's values of equality and freedom into action.
  Hate crimes are one of the most shocking types of violence against 
individuals. They are motivated by hatred and bigotry. But hate crimes 
target more than just one person--they are crimes against a community 
because of who they are--because of their race, gender, sexual 
orientation, religion or disability.
  We are a nation that cherishes our freedom. All Americans must be 
free to go to church, walk through their communities, attend school 
without the fear that they will be the target of hate violence. We are 
a Nation that is built on a foundation of tolerance and equality. Yet 
no Americans can be free from discrimination and have true equality 
unless they are free from hate crimes. That's why hate crimes are so 
destructive. They tear at our Nation's greatest strength--our 
diversity.
  This amendment does two things--it helps communities fight these 
crimes and it makes sure that those who are most often the target of 
hate motivated violence have the full protection of our Federal laws.
  The amendment strengthens current law to help local law enforcement 
investigate and prosecute hate crimes. It does this by closing a 
loophole that prevented the Federal Government from assisting local and 
State police at any stage of the investigative process. Simply put--
this bill authorizes Federal law enforcement officers to get involved 
if State or local governments want their help. That means local 
communities, which often have very limited resources for pursuing these 
types of crimes, will have the resources of the FBI and other Federal 
law enforcement agencies at their disposal to help them more 
effectively prosecute incidents of hate violence.
  This amendment also improves current law so it protects more 
Americans. It broadens the definition of hate crimes to include gender, 
sexual orientation and disability. Today, gay and lesbian Americans, 
women and those with disabilities are often targets of hate motivated 
violence, but existing Federal laws offer these communities

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no safeguards. That is the weakness in our current law. And that is 
what this legislation will fix. By passing this legislation today, the 
United States Senate says to all Americans that you deserve the full 
protection of the law and you deserve to be free from hate violence.
  Hate crimes are crimes against more than one person--these crimes 
affect whole communities and create fear and terror in these 
communities and among all Americans. We need look no further than the 
horrific killings of James Byrd and Matthew Shepard to know the anger 
and grief that families and communities experience because of hatred 
and bigotry. Hate crimes attack the fundamental values of our Nation--
freedom and equality. This bill is another step in the fight to make 
sure that in a Nation that treasures these values these crimes do not 
occur.
  So today I rise to support and urge my colleagues to pass this much 
needed and timely legislation. It is time that we put these American 
values into action and passed this hate crimes bill. The Local Law 
Enforcement Enhancement Act says that all Americans are valued and 
protected--regardless of race, religion, gender, sexual orientation or 
disability.
  Mr. ENZI. Mr. President, I rise in opposition to the Local Law 
Enforcement Enhancement Act, Amendment 3183, proposed by my colleague 
from Oregon.
  I have always believed that we should leave as many decisions as 
possible to the States to decide. Only on rare occasions, and with 
great and good cause should the Federal Government try to step in and 
legislate what the States should do. When we try to legislate ``one 
size fits all'' solutions to the problems facing the States more often 
than not we create more problems than we solve.
  Before we act on this amendment, we should ask ourselves if this new 
law that we would create would reduce crime. After all, that should be 
our primary reason for passing new criminal laws. In this case, 
although I know it is a well meaning effort to address a serious 
problem, it won't prevent crime, it will only make a statement about 
it. That's one of the problems with a Federal hate crime bill. If it 
passes, we may think we have taken care of the problem. Unfortunately, 
although it may make us feel good, a law like this will do little to 
slow down or stop the cycle of violence in our cities and towns.
  Another problem with the hate crime bill is its definition of hate 
crimes. All of the predicate offenses that would qualify as hate crimes 
are already illegal and they are already being prosecuted under 
traditional categories of crimes. In other words, the States are 
already aware of the problem and using existing law to address it. In 
those cases where additional legislation is needed, the States are 
taking the lead and deciding the matter for themselves. They don't need 
or want us to step in and tell them what they should do.
  In addition, if we pass this amendment Federal agents and prosecutors 
will be put in a position in which they will be second guessing the 
efforts of local officials and substituting their own judgment or 
political motivations for the judgment of local law enforcement 
personnel who are dealing with the problem of hate crimes at the scene 
where they are committed.
  The Smith amendment could essentially federalize most crimes. Such an 
explosion in Federal jurisdiction would require a tremendous expansion 
in the size and scope of Federal law enforcement and Federal 
prosecutors at a time when the States have the capability of 
prosecuting these crimes themselves--and they are doing it. Federal 
prosecutors already have the tools at their disposal to address issues 
like hate crimes--they just have to make better use of them.
  All crimes are in some way hate crimes. By enacting hate crime 
legislation we ironically serve the principle of inequality that this 
type of legislation seeks to fight against. Violent crimes are horrific 
and should be punished equally, regardless of the particular ``bias'' 
of the perpetrator. A vicious murder should be prosecuted to the 
fullest extent of the law--no matter who the victim is. The value of an 
individual's life should not depend on their heritage, ethnicity or 
lifestyle. If life truly is a sacred gift we should treat every life 
with the same dignity and respect we all deserve.
  To try to read someone's mind, or guess what their real motivation 
was for committing a crime will never be possible. Crimes aren't 
thoughts, they're actions, and actions which are crimes need to be 
addressed as soon as they are committed. To try to gauge the 
seriousness of a crime based on someone's thoughts is to put an 
additional burden on law enforcement personnel and prosecutors, not to 
mention the judge and jury who will have to work on and ultimately 
decide the case. Clearly, putting a greater value on some lives 
inherently devalues others, and it goes against a basic principle of 
our legal foundation which is that all are equal in the eyes of the 
law. Justice is swifter when the accused are tried on the basis of what 
they did without adding some speculation on the thoughts they might 
have had while committing the crime.
  We have State and Federal laws to punish murder, assault, battery, 
and a long list of other crimes. If these laws are not strong enough 
then we should make them stronger. We should also be making our 
feelings known to our neighbors, to our children, in our papers and 
through our broadcast media that hatred in any form is wrong. We should 
not, however, try to make statements with laws that weaken State 
authority or the rights granted to individuals in the Constitution.
  Our society must continue to participate in a dialogue on the issues 
of racism, bigotry, and hate. We must pray for direction and guidance 
and work together to ensure that we avoid the kind of hate that may 
give rise to such crimes in the first place. Hatred in any form is 
destructive to the very foundation upon which our society is built.
  If we are to truly address the problem of hate crimes, we must come 
together as one, our families, our spiritual and church leaders, our 
local and community leaders, and the citizens of our communities to 
foster and reinforce in our children and all our citizens the 
importance of treating each other as we would wish to be treated. It is 
such a simple lesson--it is never permissible to hurt another. Somehow, 
some of our children never learned it. Recent and past events make it 
clear that it is a lesson about which every child must be taught, and 
every adult constantly reminded.
  Mr. HATCH. Mr. President, I rise today in opposition to the Local Law 
Enforcement Enhancement Act of 2003, offered as an amendment by my dear 
friend from Oregon, Senator Smith.
  Those who have been instrumental in drafting hate crimes legislation 
in the past several Congresses--Senators Kennedy, Smith and others--
know I care deeply about this issue. They know I believe that hate 
crimes are insidiously harmful, that they should be forcefully 
prosecuted, and that the Federal Government has a role to play in 
reducing the incidence of these crimes in our Nation. The concerns I 
have voiced have always been about what Congress should do at the 
national level, not about whether we should act.
  In past Congresses, and again here today, I have felt compelled to 
voice my opposition to Senator Smith's hate crimes legislation which 
has essentially remained unchanged over the past several years, and is 
now being offered as an amendment. My primary concern has been, and 
remains to this day, that this legislation invades an area historically 
and constitutionally reserved to State and local law enforcement 
authorities, without a demonstrated need for Federal intervention. In 
an effort to do what we believe is right, we simply cannot ignore core 
principles of our Constitution.
  While there is little evidence that the States are failing to 
prosecute hate crimes, I firmly believe that local law enforcement 
authorities need our help. They need our resources, and they need our 
expertise. And we, the Federal Government, should stand ready and able 
to provide such assistance. We must proceed, however, in a manner that

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does not offend the authorities conferred upon the States by our 
Constitution.
  As all of my colleagues are aware, this body has considered this 
issue in almost every session of Congress since 1999. I recognize that 
Senator Smith has the necessary support in this body to pass his 
amendment. Indeed, his amendment has prevailed twice before. 
Recognizing that a majority of the Members of this body have supported 
Senator Smith's proposal in the past, and in view of the substantial 
concerns I have about the amendment, over the past few months I have 
worked diligently to improve the legislation so that it may receive 
much broader bipartisan support. I have suggested that the proposal 
include Federal assistance and a study and an analysis of available 
statistics. I have also suggested that the amendment be broadened to 
include the possibility of the death penalty for those who commit the 
most heinous of crimes. I also think that the definition and intent 
elements of what is considered to be a hate crime should be 
significantly narrowed so that we do not capture every crime that 
happens to be committed against a member of a particular class. With 
these changes, the legislation would stand a better chance of becoming 
law and surviving constitutional challenges, which we know are certain 
to occur. Despite those concessions, it appears clear that we were 
unable to come to an agreement and I must, therefore, once again stand 
in opposition to two of my dear friends.
  If we genuinely want to make a difference, if we want to pass 
legislation that both Houses of Congress will support, let us find a 
baseline of common ground and resist the temptation to make this a 
divisive political issue. I urge my colleagues to oppose the amendment.
  I yield the floor.
  Mr. SANTORUM. Mr. President, I yield the remainder of time in 
opposition.
  Mr. SMITH. Mr. President, I believe we have used all our time. 
Therefore, I believe we are ready to vote.
  The PRESIDING OFFICER. All time has expired.
  Mr. KENNEDY. Mr. President, I suggest the absence of a quorum.
  The PRESIDING OFFICER. The clerk will call the roll.
  The legislative clerk proceeded to call the roll.
  Mr. SANTORUM. Mr. President, I ask unanimous consent that the order 
for the quorum call be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.

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