[Senate Report 107-147]
[From the U.S. Government Publishing Office]



                                                       Calendar No. 103
107th Congress                                                   Report
                                 SENATE
 2d Session                                                     107-147

======================================================================



 
          THE LOCAL LAW ENFORCEMENT ENHANCEMENT ACT OF 2001

                                _______
                                

                  May 9, 2002.--Ordered to be printed

                                _______
                                

Mr. Leahy, from the Committee on the Judiciary, submitted the following

                              R E P O R T

                             together with

                             MINORITY VIEWS

      [Including cost estimate of the Congressional Budget Office]

                         [To accompany S. 625]

    The Committee on the Judiciary, to which was referred the 
bill (S. 625) to provide Federal assistance to States and local 
jurisdictions to prosecute hate crimes, and for other purposes, 
having considered the same, reports favorably thereon and 
recommends that the bill do pass.

                                CONTENTS

                                                                   Page
  I. Purpose..........................................................2
 II. Pre-existing law and the need for expanded jurisdiction..........3
III. The Local Law Enforcement Enhancement Act of 2001................8
 IV. Federalization..................................................10
  V. Constitutional basis............................................14
 VI. Not all crimes are hate crimes..................................24
VII. Examples of violent hate crimes not covered by existing law.....26
VIII.Conclusion......................................................31

 IX. Cost estimate...................................................31
  X. Regulatory impact statement.....................................33
 XI. Minority view of Senator Hatch..................................34
XII. Changes in existing law.........................................41

                               I. Purpose

    Although America experienced a significant drop in violent 
crime during the 1990's, the number of reported hate crimes has 
grown by almost 90 percent over the past decade. From 19912000, 
according to FBI statistics, there were over 73,000 reported 
hate crimes in the United States.\1\ That equals an average of 
20 hate crimes per day for 10 years straight.
---------------------------------------------------------------------------
    \1\ Reported hate crimes incidents by year: 1991 (4,558); 1992 
(6,623); 1993 (7,587); 1994 (5,932); 1995 (7,947); 1996 (8,759); 1997 
(8,049); 1998 (7,755); 1999 (7,876); 2000 (8,063).
---------------------------------------------------------------------------
    Recent hate-motivated killings in Virginia, Texas, Wyoming, 
California, Illinois, and Indiana have demonstrated the 
destructive and devastating impact the crimes have on 
individual victims and entire communities. Since September 11, 
2001, the Department of Justice has been involved in 
investigating over 350 incidents of potential hate-motivated 
violence against Arab-Americans, Muslims, and Sikhs. However, 
to date the Department has only brought hate crime indictments 
in 3 cases. Too often and for too long, the Federal Government 
has been forced to stand on the sidelines in the fight against 
these senseless acts of hate and violence because of the limits 
in existing law.
    Senate bill 625, the Local Law Enforcement Enhancement Act 
of 2001 (``Hate Crimes Act'') is intended to address two 
serious deficiencies in the principal Federal hate crimes 
statute, 18 U.S.C. 245. Enacted in 1968, the existing Federal 
statute prohibits a limited set of hate crimes committed on the 
basis of race, color, religion, or national origin. The two 
deficiencies are as follows: (1) the existing statute requires 
the Government not only to prove that the defendant committed 
an offense because of the victim's race, color, religion, or 
national origin, but also because of the victim's participation 
in one of six narrowly defined, ``federally protected 
activities;'' and (2) the existing statute provides no coverage 
whatsoever for violent hate crimes committed because of bias 
based on the victim's sexual orientation, gender, or 
disability. Together, these deficiencies limit the Federal 
Government's ability to work with State and local law 
enforcement agencies in the investigation and prosecution of 
many of the most heinous hate crimes. In some cases, the 
deficiencies entirely preclude the vindication of the Federal 
interest in fighting bias-motivated violence.
    The hate crimes bill amends title 18 of the United States 
Code and creates a new section 249 to address the 
jurisdictional limitations under existing law. In particular, 
section 249 establishes two criminal prohibitions entitled 
``hate crime acts.'' In cases involving racial, religious, or 
ethnic violence, the new section 249(a)(1) prohibits the 
intentional infliction of bodily injury without regard to the 
victim's participation in one of the six specifically 
enumerated ``federally protected activities.'' In cases 
involving violent crimes motivated by hatred based on the 
victim's actual or perceived sexual orientation, gender, or 
disability, the new section 249(a)(2) prohibits the intentional 
infliction of bodily injury whenever the incident has a nexus, 
as defined in the bill, to interstate commerce. The reasons for 
the discrepancy between (a)(1) and (a)(2) are discussed in part 
IV of the report. These amendments to title 18 of the U.S. Code 
will permit the Federal Government to work in partnership with 
State and local officials in the investigation and prosecution 
of cases that implicate the significant Federal interest in 
eradicating hate-based violence.
    It is important to emphasize Congress' expectation that 
State and local law enforcement agencies will continue to play 
the principal role in the investigation and prosecution of all 
types of hate crimes, including gender-based crimes and others 
for which Federal jurisdiction has been created by this bill. 
Concurrent Federal jurisdiction is necessary in the hate crimes 
context to permit joint State-Federal investigations and to 
authorize Federal prosecutions in limited circumstances--for 
example, where the State lacks jurisdiction or declines to 
assume jurisdiction, where the State requests that the Federal 
Government assume jurisdiction, or where actions by State and 
local law enforcement officials have left demonstratively 
unvindicated the Federal interest in eradicating bias-motivated 
violence.

      II. Pre-Existing Law and the Need for Expanded Jurisdiction

1. The ``Federally Protected Activity'' requirement of 18 U.S.C. 
        245(b)(2)
    18 U.S.C. 245(b) has been the principal Federal hate crimes 
statute since its enactment in 1968. It prohibits the use of 
force, or threat of force, to injure, intimidate, or interfere 
with (or to attempt to injure, intimidate, or interfere with) 
``any person because of his race, color, religion or national 
origin'' and because of his and her participation in any of six 
``federally protected activities'' specifically enumerated in 
the statute.
    The six enumerated ``federally protected activities'' are: 
(A) enrolling in or attending a public school or public 
college; (B) participating in or enjoying a service, program, 
facility or activity provided or administered by any State or 
local government; (C) applying for or enjoying employment; (D) 
serving in a State court as a grand or petit juror; (E) 
traveling in or using a facility of interstate commerce; and 
(F) enjoying the goods or services of certain places of public 
accommodation.
    Federal jurisdiction exists under 18 U.S.C. 245(b)(2) only 
if a crime motivated by racial, ethnic, or religious hatred has 
been committed with the intent to interfere with the victim's 
participation in one or more of the six federally protected 
activities. Even in the most blatant cases of racial, ethnic, 
or religious violence, no Federal jurisdiction exists under 
this section unless the federally protected activity 
requirement is satisfied. This unnecessary intent requirement 
has limited the ability of Federal law enforcement officials to 
work with State and local officials in the investigation and 
prosecution of many incidents of brutal, hate-motivated 
violence and has led to acquittals in several of the cases in 
which the Department of Justice has determined a need to assert 
Federal jurisdiction.
    The most important benefit of concurrent State and Federal 
criminal jurisdiction is the ability of State and Federal law 
enforcement officials to work together as partners in the 
investigation and prosecution of serious crimes. When Federal 
jurisdiction has existed in the limited hate crimes contexts 
authorized by 18 U.S.C. 245(b), the Federal Government's 
resources, forensic expertise, and experience in the 
identification and proof of hate-based motivations has often 
provided an invaluable investigative complement to the 
familiarity of local investigators with the local community and 
its people and customs. It is by working together cooperatively 
that State and Federal law enforcement officials stand the best 
chance of bringing the perpetrators of hate crimes swiftly to 
justice.
    The investigation conducted into the death of James Byrd in 
Jasper County, TX, is an excellent example of the benefits of 
an effective State-Federal hate crimes investigative 
partnership. From the time of the first reports of Mr. Byrd's 
death, the FBI collaborated with local officials in an 
investigation that led to the prompt arrest and indictment of 
three men on State capital murder charges. The resources, 
forensic expertise, and civil rights experience of the FBI and 
the Department of Justice provided assistance of great value to 
local law enforcement officials.
    It is also useful in this regard to consider the work of 
the National Church Arson Task Force, which operates pursuant 
to jurisdiction granted by 18 U.S.C. 247 and other Federal 
criminal statutes that have no jurisdictional limitations 
analogous to the ``federally protected activity'' requirement 
of 18 U.S.C. 245(b)(2). Created in mid-1996 to address a rash 
of church fires across the country, the task force's Federal 
prosecutors and investigators from ATF and the FBI collaborated 
with State and local officials in the investigation of every 
church arson that had occurred since January 1, 1995. The 
results of these State-Federal partnerships were extraordinary. 
Thirty-four percent of the joint State-Federal church arson 
investigations conducted during the 2-year life of the task 
force resulted in arrests of one or more suspects on State or 
Federal charges. The task force's 34 percent arrest rate was 
more than double the normal 16-percent rate of arrest in all 
arson cases nationwide, most of which are investigated by local 
officials without Federal assistance. More than 80 percent of 
the suspects arrested in joint State-Federal church arson 
investigations during the life of the task Force were 
prosecuted in State court under State law.
    Congress anticipates that the State-Federal partnerships 
authorized by the hate crimes act will result in an increase in 
the number of hate crimes solved by arrests and successful 
prosecutions analogous to that achieved through joint State-
Federal investigations in the church arson context. Congress 
also anticipates that a large majority of hate crimes 
prosecutions will continue to be brought in State court under 
State law.
    Congress recognizes, however, that in some circumstances 
the Federal Government must go beyond its usual role as the 
investigative partner of State and local law enforcement 
officials and bring Federal criminal civil rights charges. 
Where State and local prosecutors fail to bring appropriate 
State charges, or where State law or procedure is inadequate to 
vindicate the Federal interest in prosecuting hate crimes, it 
is imperative that the Federal Government be able to step in 
and bring effective Federal prosecutions. Unfortunately, the 
double-intent requirement of 18 U.S.C. 245(b)(2) has precluded 
the Department of Justice from performing its proper backstop 
role with regard to a number of heinous hate crimes.
    As Deputy Attorney General Eric Holder testified before the 
Senate Committee on the Judiciary, the Department of Justice 
brought Federal hate crimes prosecutions under 18 U.S.C. 
245(b)(2) in each of the following cases. In each case, Federal 
prosecutors lost at trial due to the statute's ``federally 
protected activity'' requirement.
    In 1994, a Federal jury in Fort Worth, TX, acquitted three 
white supremacists of Federal criminal civil rights charges 
arising from unprovoked assaults upon African-Americans, 
including one incident in which the defendants knocked a man 
unconscious as he stood near a bus stop. Some of the jurors 
revealed after the trial that although the assaults were 
clearly motivated by racial animus, there was no apparent 
intent to deprive the victims of the right to participate in 
any ``federally protected activity.'' The Government's proof 
that the defendants went out looking for African-Americans to 
assault was insufficient to satisfy the requirements of 18 
U.S.C. 245(b)(2).
    In 1982, two white men chased a man of Asian descent from a 
nightclub in Detroit and beat him to death. The Department of 
Justice prosecuted the two perpetrators under 18 U.S.C. 
245(b)(2), but both were acquitted despite substantial evidence 
to establish their animus based on the victim's national 
origin. Although the Department has no direct evidence of the 
basis for the jurors' decision, it appears that the 
Government's need to prove the defendants' intent to interfere 
with the victim's exercise of a federally protected right--the 
use of a place of public accommodation--was the weak link in 
the prosecution.
    In 1980, a notorious serial murderer and white supremacist 
shot and wounded an African-American civil rights leader as the 
civil rights leader walked from a car toward his room in a 
motel in Ft. Wayne, IN. The Department of Justice prosecuted 
the shooter under 18 U.S.C. 245(b)(2), alleging that he 
committed the shooting because of the victim's race and because 
of the victim's participation in a federally protected 
activity, i.e. the use of a place of public accommodation. The 
jury found the defendant not guilty. Several jurors later 
advised the press that although they were persuaded that the 
defendant committed the shooting because of the victim's race, 
they did not believe that he also did so because of the 
victim's use of the motel.
    In each of these examples, one or more persons committed a 
heinous act of violence clearly motivated by the race, color, 
religion, or national origin of the victim. In each instance, 
local prosecutors failed to bring State criminal charges. Yet 
in each case, the extra intent requirement of 18 U.S.C. 
245(b)(2)--that a hate crime be committed because of the 
victim's participation in one of the federally protected 
activities specifically enumerated in the statute--prevented 
the Department of Justice from vindicating the Federal interest 
in the punishment and deterrence of hate-based violence.
    The ``federally protected activity'' requirement of 18 
U.S.C. 245(b)(2) has led to truly bizarre results. Federal 
jurisdiction is likely to be upheld under this section when a 
racially motivated assault occurs on a public sidewalk, but not 
if the same incident occurs in a private parking lot across the 
street. Similarly, the Federal Government's jurisdiction to 
respond to a racially motivated attack that occurs in front of 
a convenience store may depend on whether or not the 
convenience store has a video game inside. The presence of a 
video game would likely qualify the store as a ``place * * * of 
entertainment'' within the meaning of 18 U.S.C. 245(b)(2)(F). 
Congress has determined that the Federal Government's authority 
to participate in State-Federal investigative partnerships, and 
to step in and play a backstop role when necessary, should not 
hinge upon such unnecessary, anachronistic distinctions.
2. Violent hate crimes based on sexual orientation, gender, or 
        disability
    The existing Federal hate crimes law does not prohibit hate 
crimes committed because of bias based on the victim's actual 
or perceived sexual orientation, gender, or disability.
      a. Sexual orientation
    Statistics gathered by the Federal Government and private 
organizations indicate that a significant number of hate crimes 
based on the sexual orientation of the victim are committed 
every year in the United States. Specifically, data collected 
by the FBI pursuant to the Hate Crimes Statistics Act indicate 
that from 1991 through 2000--the last year for which data 
exists--there have been over 9,300 reported hate crimes based 
on sexual orientation. In 1991, the FBI reported 425 hate 
crimes based on sexual orientation. In 2000, that number had 
grown to 1,299, an increase of over 200 percent. And even these 
statistics may significantly understate the number of hate 
crimes based on sexual orientation that actually are committed 
in this country.
    Many victims of antilesbian, antigay, and antitransgender 
incidents do not report the crimes to local law enforcement 
officials. In fact, according to Austin, TX, police Commander 
Gary Olfers, hate crimes are the ``Number 1 under reported 
crime in the state.'' Dallas Morning News, ``Hate-crimes 
experts say statistics don't tell story: Many cases unreported; 
special law rarely used'', November 8, 1999. And ``[d]espite 
under reporting, the trend in state statistics shows that gays 
and lesbians are increasingly the targets of crime.'' Id.
    The Southern Poverty Law Center's Winter 2001 Intelligence 
Report (The Hate Crime Statistics Act: Ten Years Later, The 
Numbers Don't Add Up) found that ``the real level of hate 
crimes--currently running at about 8,000 a year in FBI 
statistics--is probably closer to 50,000.'' For example, 
according to the Report, a study funded by the Justice 
Department ``estimated that almost 6,000 law enforcement 
agencies likely experienced at least one hate crime that went 
unreported.''
    Despite the prevalence of violent hate crimes committed on 
the basis of sexual orientation, such crimes are not covered by 
18 U.S.C. 245 unless there is some independent basis for 
Federal jurisdiction, such as race-based bias. Accordingly, the 
Federal Government has been without authority to work in 
partnership with local law enforcement officials, or to bring 
Federal prosecutions, when gay men or lesbians are the victims 
of murders or other violent assaults because of bias based on 
their sexual orientation.
    The murder of Mathew Shepard in Laramie, WY, is a perfect 
example of the limitations in pre-existing Federal law. Despite 
the clear evidence that the murder of Mr. Shepard was motivated 
by animus based on Mr. Shepard's sexual orientation, the 
Federal Government lacked jurisdiction under pre-existing law 
to act as a full partner with State and local officials in the 
investigation of this horrifying crime or, if necessary, to 
bring Federal hate crimes charges. As a result, according to 
Commander David O'Malley--the chief investigator in the Shepard 
murder case--``the Albany County Sheriff's office had to 
furlough five investigators because of soaring costs'' 
associated with handling the case without any financial or 
investigatory support from the Federal Government. (Excerpts of 
press statement by Commander David O'Malley, September 12, 
2000).
    In a November 11, 1999, letter to Speaker Dennis Hastert, 
Sheriff James Pond and detective Sergeant Robert DeBree of the 
Albany County Sheriff's Department wrote: ``We believe justice 
was served in this case [Shepard], but not without cost. We 
have been devastated financially, due to expenses incurred in 
bringing Matthew's killers to justice. For example, we had to 
lay off five law enforcement staff.''
    The situation confronting the Albany County Sheriff's 
office in the Shepard case stands in stark contrast to what 
occurred in Jasper, TX, in the James Bryd, Jr., case. Because 
the murder of James Byrd, Jr. was covered under the existing 
Federal hate crimes statute, the local law enforcement agency 
in Jasper received forensic assistance and nearly $300,000 from 
the Federal Government to help cover the costs associated with 
successfully prosecuting Mr. Byrd's killers.
      b. Gender
    Although acts of violence committed against women 
traditionally have been viewed as ``personal attacks'' rather 
than as hate crimes, Congress has come to understand that a 
significant number of women are exposed to terror, brutality, 
serious injury, and even death because of their gender. Indeed, 
Congress, through the enactment of the Violence Against Women 
Act (VAWA) in 1994, has recognized that some violent assaults 
committed against women are bias crimes rather than mere 
``random'' attacks. The Senate Report on VAWA, which created a 
Federal civil cause of action for victims of gender-based hate 
crimes, stated:

          The Violence Against Women Act aims to consider 
        gender-motivated bias crimes as seriously as other bias 
        crimes. Whether the attack is motivated by racial bias, 
        ethnic bias, or gender bias, the results are often the 
        same. The victims are reduced to symbols of hatred; 
        they are chosen not because of who they are as 
        individuals but because of their class status. The 
        violence not only wounds physically, it degrades and 
        terrorizes, instilling fear and inhibiting the lives of 
        all those similarly situated. ``Placing this violence 
        in the context of the civil rights laws recognizes it 
        for what it is--a hate crime.''

Senate Report No. 103-138 (1993) (quoting testimony of Prof. 
Burt Neuborne).

    The majority of States do not have statutes that 
specifically prohibit gender-based or transgender-based hate 
crimes. Although all 50 states have statutes prohibiting rape 
and other crimes typically committed against women, only 24, 
plus the District of Columbia, have hate crimes statutes that 
include gender among the categories of prohibited bias motives.
    The Committee has concluded that the Federal Government 
should have jurisdiction, as set forth in the hate crimes act, 
to work together with State and local law enforcement officials 
in the investigation of violent gender-based and transgender-
based hate crimes and, where appropriate in rare circumstances, 
to bring Federal prosecutions aimed at vindicating the strong 
Federal interest in combating the most heinous of these crimes 
of violence.
    It is important to emphasize in this regard that the Hate 
Crimes Act will not result in the federalization of all rapes, 
other sexual assaults, or acts of domestic violence. Rather, as 
discussed below in greater detail, Congress has drafted the 
bill to ensure that the Federal Government's investigations and 
prosecutions of gender-based hate crimes will be strictly 
limited to those crimes that are motivated by gender-based 
animus and, thus, implicate the greatest Federal interest. The 
April 10, 2002, indictment of Darrell David Rice by the Justice 
Department for the brutal murders of Juliane Marie Williams and 
Laura S. Winans is a clear example of such a crime.
    As is the case with other categories of hate crimes, State 
and local authorities will continue to prosecute virtually all 
gender-motivated hate crimes. One principal reason for this is 
that while State and local prosecutors are required to prove 
only that the perpetrator committed the act alleged in the 
indictment, Federal prosecutors will be required to prove not 
only that the perpetrator committed the act alleged, but also 
that the perpetrator was motivated by animus based on actual or 
perceived gender and that the crime has a nexus to interstate 
commerce.
      c. Disability
    Congress has shown a consistent and durable commitment over 
the past decade to the protection of persons with disabilities 
from discrimination based on their disabilities. Beginning with 
the 1988 amendments to the Fair Housing Act, and culminating 
with the enactment of the Americans with Disabilities Act of 
1990, Congress has extended civil rights protections to persons 
with disabilities in many traditional civil rights contexts. 
Currently, 24 States plus the District of Columbia have hate 
crime statutes that cover disability.
    Concerned about the problem of disability-based hate 
crimes, Congress also amended the Hate Crimes Statistics Act in 
1994 to require the FBI to collect information about such hate-
based incidents from State and local law enforcement agencies.
    Congress has determined that the Federal interest in being 
able to work together with State and local officials in the 
investigation and prosecution of hate crimes motivated by 
animus based on disability is sufficiently strong to warrant 
amendment of 18 U.S.C. 245, as set forth in the Hate Crimes 
Act, to include such crimes when they result in bodily injury 
and when Federal prosecution is consistent with the commerce 
clause.

         III. The Local Law Enforcement Enhancement Act of 2001

    The Local Law Enforcement Enhancement Act of 2001 creates a 
three-tiered system for the Federal prosecution of hate crimes 
under 18 U.S.C. 245, as follows:
    First, the bill leaves 18 U.S.C. 245(b)(2) as is. As 
discussed above, 18 U.S.C. 245(b)(2) prohibits the intentional 
interference, or attempted interference, with a person's 
participation in one of six specifically enumerated ``federally 
protected activities'' on the basis of the person's race, 
color, religion, or national origin. No showing of bodily 
injury is required to prove a misdemeanor offense under this 
section; to prove a felony, the Government must prove either 
that bodily injury or death resulted or that the offense 
included the use, attempted use, or threatened use of a 
dangerous weapon, explosives, or fire.
    Second, the bill adds a new section to title 18 of the U.S. 
Code to be codified at 18 U.S.C. 249--entitled ``Hate crime 
acts.'' In particular, section 249(a)(1) prohibits the 
intentional infliction of bodily injury on the basis of race, 
color, religion, or national origin. Unlike 18 U.S.C. 
245(b)(2), this new provision does not require a showing that 
the defendant committed the offense because of the victim's 
participation in a federally protected activity. However, an 
offense under the new 18 U.S.C. 249(a)(1) will be prosecuted as 
a felony only, and a showing either of bodily injury or death 
or of an attempt to cause bodily injury or death through the 
use of fire, a firearm, or an explosive device is required. 
Other attempts will not constitute offenses under this section.
    Third, the new section 18 U.S.C. 249(a)(2), prohibits the 
intentional infliction of bodily injury or death (or an attempt 
to inflict bodily injury or death through the use of fire, a 
firearm, or an explosive device) on the basis of religion, 
gender, sexual orientation, or disability. Like 18 U.S.C. 245, 
this provision authorizes the prosecution of felonies only and 
excludes most attempts, while omitting the ``federally 
protected activity'' requirement of 18 U.S.C. 245.
    Unlike 18 U.S.C. 245, however, this second new provision 
requires proof that the defendant was motivated by hate based 
on the actual or perceived sexual orientation, gender, or 
disability of any person. In addition, this provision requires 
proof of a commerce clause nexus as an element of the offense. 
Specifically, the Government must prove:

   the conduct occurs during the course of, or as the 
        result of, the travel of the defendant or the victim--

          (I) across a State line or national border; or
          (II) using a channel, facility, or instrumentality of 
        interstate or foreign commerce;

   the defendant uses a channel, facility, or 
        instrumentality of interstate or foreign commerce in 
        connection with the conduct;

   the defendant employs a firearm, explosive or 
        incendiary device, or other weapon that has traveled in 
        interstate or foreign commerce; or

          (I) interferes with commercial or other economic 
        activity in which the victim is engaged at the time of 
        the conduct; or
          (II) otherwise affects interstate or foreign 
        commerce.

   the defendant or the victim travels in interstate or 
        foreign commerce, uses a facility or instrumentality of 
        interstate or foreign commerce, or engages in activity 
        affecting interstate or foreign commerce; or

   the offense is in or affects interstate or foreign 
        commerce.'' See 18 U.S.C. 245(c)(2)(B).

    Finally, for prosecutions under sections 249 (a)(1) and 
(a)(2), the bill requires a certification by the Attorney 
General (or one of a few other senior Department of Justice 
officials designated in the bill) that:

   (1) he or she has reasonable cause to believe that 
        the actual or perceived race, color, religion, national 
        origin, gender, sexual orientation, or disability of 
        any person was a motivating factor underlying the 
        alleged conduct of the defendant; and

   (2) he or his designee or she or her designee has 
        consulted with State or local law enforcement officials 
        regarding the prosecution and determined that--

          (A) the State does not have jurisdiction or does not 
        intend to exercise jurisdiction;
          (B) the State has requested that the Federal 
        Government assume jurisdiction;
          (C) the State does not object to the Federal 
        Government assuming jurisdiction; or
          (D) the verdict or sentence obtained pursuant to 
        State charges left demonstratively unvindicated the 
        Federal interest in eradicating bias-motivated 
        violence.

                           IV. Federalization

    As stated above, it is both the intent and the expectation 
of Congress that the enactment of the Hate Crimes Act will 
result in only a modest increase in the number of hate crimes 
prosecutions brought by the Federal Government. In the more 
than 30 years since 18 U.S.C. 245 was enacted, the Federal 
Government, on average, has prosecuted four hate crimes a year. 
Congress has carefully drafted this bill, and included limiting 
statutory language where necessary, to ensure that the Federal 
Government will continue to limit its prosecutions of hate 
crimes--particularly those motivated by actual or perceived 
animus based on gender--to the small set of cases that 
implicate the greatest Federal interest and present a need for 
Federal intervention. It is essential that all understand that 
it is not the intention of Congress to federalize all rapes, 
sexual assaults, acts of domestic violence, or other gender-
based crimes.
    The express language of the bill contains several important 
limiting principles. First, the bill requires proof that 
offenses in the three new categories be motivated by animus 
based on actual or perceived sexual orientation, gender, or 
disability. This statutory animus requirement, which the 
Government must prove beyond a reasonable doubt as an element 
of the offense, will limit the pool of potential Federal cases 
to those in which the evidence of bias motivation is sufficient 
to distinguish them from ordinary State law cases.
    Second, the bill requires a nexus to interstate commerce 
for all Federal hate crimes based on sexual orientation, 
gender, or disability. This interstate commerce requirement, 
which the Government must prove beyond a reasonable doubt as an 
element of the offense, will limit Federal jurisdiction in 
these new categories to cases that implicate Federal interests.
    Third, the bill excludes misdemeanors and limits Federal 
hate crimes based on sexual orientation, gender, or disability 
to those involving bodily injury or death (and a limited set of 
attempts to cause bodily injury or death). These limitations 
will narrow the set of newly federalized cases to truly serious 
offenses.
    Finally, while 18 U.S.C. 245 already requires a written 
certification by the Attorney General, the Deputy Attorney 
General, the Associate Attorney General, or a specially 
designated Assistant Attorney General that ``in his [or her] 
judgment a prosecution by the United States is in the public 
interest and necessary to secure substantial justice'' before 
any prosecution under the statute may be commenced, see 18 
U.S.C. 245(a)(1), the Hate Crimes Act requires an even stricter 
certification for prosecutions brought under the provisions of 
the bill that create new Federal categories of hate crimes.
    Specifically, the bill requires certification, by the 
Attorney General or other high-ranking Department of Justice 
official specified therein, that: ``(1) he or she has 
reasonable cause to believe that the actual or perceived race, 
color, national origin, religion, sexual orientation, gender, 
or disability of any person was a substantial motivating factor 
underlying the defendant's conduct; and (2) that he or his 
designee, or she or her designee, has consulted with state or 
local law enforcement officials regarding the prosecution and 
determined that: (a) the State does not have jurisdiction or 
refuses to assume jurisdiction; or (b) the State has requested 
that the federal government assume jurisdiction; (c) the state 
does not object to the federal government assuming 
jurisdiction; or (d) actions by state and local law enforcement 
officials have left demonstrably unvindicated the federal 
interest in eradicating bias-motivated violence.'' 18 U.S.C. 
249(b). This heightened certification requirement is intended 
to ensure that the Federal Government will assert its new hate 
crimes jurisdiction in a principled and properly limited 
fashion.
    Congress expects the efforts of the Department of Justice 
under the new substantive provisions of the Hate Crimes Act to 
be guided by Department-wide policies that impose additional 
limitations on the cases prosecuted by the Federal Government. 
First, under the ``backstop policy'' that applies to all of the 
Federal Government's criminal civil rights investigations, the 
Department of Justice defers prosecution in the first instance 
to State and local law enforcement officials except in highly 
sensitive cases in which the Federal interest in prompt Federal 
investigation and prosecution outweighs the usual 
justifications of the backstop policy.
    Second, under the formal policy of the Department of 
Justice on dual and successive prosecutions, the Department 
does not bring a Federal prosecution following a State 
prosecution arising from the same incident unless the matter 
involved a ``substantial federal interest'' that the state 
prosecution had left ``demonstrably unvindicated.''
    Some opponents of the Hate Crimes Act argue that the 
legislation will unduly expand Federal authority and infringe 
on the States' discretion in prosecuting criminal conduct. This 
view was expressed by Senator Hatch, who asserted that the Hate 
Crimes Act ``strays from the foundations of our Constitutional 
structure--namely, the first principles of federalism that for 
more than two centuries have vested states with primary 
responsibility for prosecuting crimes committed within their 
boundaries.'' \2\ Although the Committee agrees with Senator 
Hatch concerning the proper role of the Federal Government in 
prosecuting criminal conduct, the Hate Crimes Act is consistent 
with a long history of Federal involvement in combating 
criminal conduct.
---------------------------------------------------------------------------
    \2\ Congressional Record, July 21, 1999.
---------------------------------------------------------------------------
    Alexander Hamilton, an advocate of a strong national 
government, eloquently expressed the notion that law 
enforcement generally should be the responsibility of the 
State. He wrote in Federalist Number 17, ``There is one 
transcendent advantage belonging to the province of the state 
governments, which alone suffices to place the matter in a 
clear and satisfactory light. I mean the ordinary 
administration of criminal and civil justice.''
    Today, 95 percent of all criminal prosecutions are handled 
at the State and local level. At the same time, a review of the 
Federal criminal code belies the argument that criminal law is 
the sole province of State and local governments. In fact, 
since the first Congress, the Federal Government has involved 
itself in the enactment and enforcement of criminal laws. The 
Committee believes that hate crimes legislation is just as 
vital to the national interest as prior criminal statutes 
passed by Congress--many in the past 6 years and unanimously 
supported by opponents of hate crimes legislation.
    There are already more than 3,000 Federal crimes.\3\ In 
fact, the First Congress in the Crimes Act of 1790 \4\ 
established 17 Federal crimes, including treason, counterfeit, 
perjury, and receiving stolen goods. Since then, the extent of 
Federal criminal law has greatly expanded into areas 
traditionally prosecuted by the States. For example, after the 
Civil War, Congress passed the Post Office Act of 1872 which 
forbade mailing lottery tickets and obscene materials or using 
the mail to defraud. The next year, the Comstock Law forbade 
using the mail to send obscene books, contraceptives, or an 
article for procuring abortion. In 1884, Congress forbade 
railroads and boat lines from accepting or transporting 
diseased livestock. Shortly thereafter, it enacted the Sherman 
Act.
---------------------------------------------------------------------------
    \3\ See Hon. Roger J. Miner, ``Crime and Punishment in the Federal 
Courts,'' 43 Syracuse L. Rev. 682, 681 (1992).
    \4\ 1 Stat. 112.
---------------------------------------------------------------------------
    At the turn of the century, Congress continued to expand 
Federal criminal law. The Mann Act \5\ prohibited the transport 
of women across State lines for illicit purposes; the Dyer Act 
\6\ prohibited transporting a stolen motor vehicle across State 
lines; and the Volstead Act \7\ instituted prohibition. In the 
1930's, Congress enacted the Lindbergh Act, prohibiting the 
transportation of a kidnaping victim across State lines; \8\ 
the Fugitive Felon Act,\9\ prohibiting interstate flight to 
avoid prosecution for enumerate violent felonies; the National 
Firearms Act,\10\ regulating the sale of guns; the National 
Stolen Property Act,\11\ prohibiting the transportation of 
stolen property in interstate commerce; and statutes that 
punished robbing a national bank; \12\ and extortion by 
telephone, telegraph or radio.\13\
---------------------------------------------------------------------------
    \5\ Act of June 25, 1910, ch. 395, 36 Stat. 825. The Supreme Court 
upheld the statute in Hoke v. United States, 227 U.S. 308 (1913).
    \6\ Act of Oct. 29, 1919, ch. 89, 41 Stat. 324. The Supreme Court 
upheld the Dyer Act in Brooks v. United States, 267 U.S. 432 (1925).
    \7\ Act of Oct. 28, 1919, ch. 85, 41 Stat. 305.
    \8\ Ch. 271, 47 Stat. 326 (1932).
    \9\ Ch. 302, 48 Stat. 782 (1934).
    \10\ Act of June 26, 1934, ch. 757, 48 Stat. 1236.
    \11\ Ch. 333, 48 Stat. 794 (1934).
    \12\ Ch. 304, 48 Stat. 783 (1934).
    \13\ Ch. 300, 48 Stat. 781 (1934).
---------------------------------------------------------------------------
    Since then, Congress has passed the Omnibus Crime Control 
and Safe Streets Act of 1968,\14\ the Organized Crime Control 
Act of 1970,\15\ the Comprehensive Drug Prevention and Control 
Act of 1970,\16\ the Crime Control Act of 1984,\17\ the Anti-
Drug Abuse Acts of 1986 \18\ and 1988,\19\ the Comprehensive 
Crime Control Act of 1990,\20\ and the Violent Crime Control 
and Law Enforcement Act of 1994.\21\
---------------------------------------------------------------------------
    \14\ Public Law 90-351, 82 Stat. 197 (1968).
    \15\ Public Law 91-452, 84 Stat. 922 (1970).
    \16\ Public Law 91-513, 84 Stat. 1236 (1970).
    \17\ Public Law 98-473, 98 Stat. 1837 (1984).
    \18\ Public Law 99-570, 100 Stat. 3207 (1986).
    \19\ Public Law 100-690, 102 Stat. 4181 (1988).
    \20\ Public Law 101-647, 104 Stat. 4789 (1990).
    \21\ Public Law 103-322, 108 Stat. 1796 (1994).
---------------------------------------------------------------------------
    Since 1995 alone, Congress has enacted more than 37 laws 
that create new Federal crimes or impose new Federal criminal 
penalties for conduct that is already criminal under State law. 
For example, in 1996, Congress, with a vote of 98-0 in the 
Senate, enacted the Church Arson Prevention Act.\22\ In 
encouraging passage, Senator Frist observed:
---------------------------------------------------------------------------
    \22\ Public Law 104-155.

          I truly believe that the local authorities are the 
        best resources to investigate and solve [church 
        arsons]. This bill does not undermine, or in any way, 
        suggest, that the local authorities are not capable of 
        solving these crimes. Rather, the bill helps to deal 
        with special difficulties involved when a criminal 
        moves from state to state and where federal assistance 
        and a federal statute is needed to adequately resolve 
        the problem.\23\
---------------------------------------------------------------------------
    \23\ Congressional Record, July 8, 1996.

    Likewise, in 1997, Congress unanimously passed the Criminal 
Use of Guns Act,\24\ which increases mandatory minimum 
sentences for individuals who commit crimes of violence or drug 
trafficking when a firearm is used in the crime. In supporting 
the legislation, Senator Helms expressed the view that: 
``Fighting crime is, and must be, a prime concern in America'' 
and that enacting the legislation ``is a necessary step toward 
recommitting our Government and our citizens to a real honest-
to-God war on crime.'' \25\
---------------------------------------------------------------------------
    \24\ Public Law 105-386.
    \25\ Congressional Record, Jan. 21, 1997.
---------------------------------------------------------------------------
    Two years later, in 1999, Congress unanimously enacted the 
Federal Law Enforcement Animal Protection Act,\26\ making it a 
Federal offense--punishable for up to 10 years in prison--to 
injure a Federal law enforcement animal. That same year, it 
unanimously passed the Prevention of Depiction of Animal 
Cruelty Act,\27\ banning the interstate commerce of videos 
depicting cruelty to animals. During the debate on the latter, 
Senator Smith of New Hampshire argued that ``state anti-cruelty 
statutes are not adequate in addressing this problem.'' \28\ 
Likewise, Senator Kyl argued that ``while the acts of animal 
cruelty featured in these videos may violate many state animal 
cruelty laws, they can be difficult to prosecute.'' \29\
---------------------------------------------------------------------------
    \26\ Public Law 106-254.
    \27\ Public Law 106-152.
    \28\ Congressional Record, Nov. 19, 1999.
    \29\ Id.
---------------------------------------------------------------------------
    Today, the Federal law reaches aspects of the following 
traditional State offenses: theft,\30\ fraud,\31\ 
extortion,\32\ bribery,\33\ assault,\34\ domestic violence,\35\ 
robbery,\36\ murder,\37\ and drug offenses.\38\ Although 
Congress should be cautious in expanding Federal criminal 
statutes, the Committee believes combating a growing trend of 
hate-motivated violence is an important function of the Federal 
Government.
---------------------------------------------------------------------------
    \30\ 18 U.S.C. 659 (theft from interstate shipment), 18 U.S.C. 
2312, 2313 (interstate transportation of stolen motor vehicles), 18 
U.S.C. 2314, 2315 (interstate transportation of stolen property).
    \31\18 U.S.C. 1341 (mail fraud), 18 U.S.C. 1343 (wire fraud), 18 
U.S.C. 1344 (bank fraud).
    \32\ 18 U.S.C. 1951 (interference with commerce by extortion), 18 
U.S.C. 891-894 (extortionate credit transaction).
    \33\ 18 U.S.C. 201 (bribery of Federal official), 18 U.S.C. 224 
(sports bribery), 18 U.S.C. 666 (Federal program bribery), 18 U.S.C. 
1952 (interstate travel in aid of bribery).
    \34\ 18 U.S.C. 351 (assault on federally protected persons), 18 
U.S.C. 1501 (assault on process server).
    \35\ 18 U.S.C. 2261 (interstate domestic violence).
    \36\ 18 U.S.C. 1951 (interference with interstate commerce by 
threats of violence).
    \37\ 18 U.S.C. 1116 (murder of foreign officials, official guests, 
and internationally protected persons), 18 U.S.C. 1117 (conspiracy to 
commit murder), 18 U.S.C. 1120 (murder by escaped Federal prisoner), 18 
U.S.C. 1958 (use of interstate commerce facilities in commission of 
murder-for-hire).
    \38\ 21 U.S.C. 841 (manufacture, distribution, and possession with 
the intent to distribute), 21 U.S.C. 846 (drug conspiracy), 21 U.S.C. 
848 (drug kingpin).
---------------------------------------------------------------------------

                        V. Constitutional Basis

    The 13th amendment broadly authorizes Congress to regulate 
acts of violence committed on the basis of race, color, 
religion, or national origin and therefore provides an ample 
constitutional basis for the provision of the Hate Crimes Act 
that addresses hate crimes falling within these categories.
    The commerce clause provides Congress' strongest source of 
legislative authority to regulate acts of violence motivated by 
animus based on actual or perceived sexual orientation, gender, 
or disability. To avoid constitutional concerns arising from 
the Supreme Court's Lopez decision, Congress has required that 
the Government prove beyond a reasonable doubt, as an element 
of the offense, a nexus to interstate commerce in every 
prosecution brought under one of the newly created categories 
of 18 U.S.C. 249(a)(2). Congress has drafted the commerce 
clause element in a manner intended to reach all cases within 
the scope of its commerce power. Pursuant to 18 U.S.C. 
249(a)(2), the Government must prove, in hate crimes 
prosecutions involving conduct motivated by animus based on 
actual or perceived sexual orientation, gender, or disability, 
``that (i) in connection with the offense, the defendant 
travel[ed] in interstate or foreign commerce, use[d] a facility 
or instrumentality of interstate or foreign commerce, or 
engage[d] in activities that affect interstate or foreign 
commerce; or (ii) the offense [wa]s in or affect[ed] interstate 
or foreign commerce.''
    The interstate commerce element will ensure that hate 
crimes prosecutions brought under the new 18 U.S.C. 249(a)(2) 
will not be mired in constitutional litigation concerning the 
scope of Congress' power under the enforcement provisions of 
the 13th and 14th amendments. Congress believes that the 
interstate commerce element contained in the bill for hate 
crimes based on sexual orientation, gender, or disability fully 
satisfies Congress' obligation to comply with the commerce 
clause. The interstate commerce nexus required by the bill is 
analogous to that required in many other Federal criminal 
statutes, including the Church Arson Prevention Act of 1996, 
the Hobbs Act, and the Racketeer Influenced and Corrupt 
Organizations Act (RICO). Prosecutions brought under these 
statutes have not raised problematic constitutional litigation 
over the interpretation of their respective commerce clause 
elements.
    Indeed, the Church Arson Prevention Act of 1996 provides a 
strong precedent for the structure of the Hate Crimes Act. 
Congress passed the Church Arson Prevention Act after 
discovering that then-existing Federal laws pertaining to 
church arson cases contained unnecessarily onerous 
jurisdictional requirements. Consistent with its constitutional 
authority, Congress amended the church arson statute, 18 U.S.C. 
247, to limit to church arson cases involving religious 
motivation its requirement that a nexus to interstate commerce 
be proved. Analogous to the structure set forth in the Hate 
Crimes Act, the Church Arson Prevention Act does not require 
proof of an interstate commerce element in church arson cases 
involving racial or ethnic motivation. The changes in Federal 
law achieved through the enactment of the Church Arson 
Prevention Act have been largely responsible for the remarkable 
success of the National Church Arson Task Force, which, as 
described above, has worked in partnership with State and local 
officials to solve church arson cases at more than double the 
usual rate of arrest in all arson cases nationwide.
    Finally, to the extent that there may be open questions 
regarding the precise contours of the range of circumstances 
under which the enforcement provision of the 13th amendment 
authorizes Congress to criminalize hate crimes committed on the 
basis of religion, Congress has included religious violence in 
both 18 U.S.C. 249(a)(1), which is based on Congress' 
enforcement powers under the 13th amendment and does not 
require proof of a nexus to interstate commerce, and 18 U.S.C. 
249(a)(2), which is based on Congress' powers under the 
commerce clause and contains an interstate commerce element 
that must be proved by the Government beyond a reasonable doubt 
in each case. The inclusion of religion in both subsection 
(a)(1) and subsection (a)(2) will enable prosecutors to 
determine, based on the facts of each case before them, how 
best to proceed in light of possible constitutional challenges 
that might be brought.
a. Justice Department letter on constitutionality
    The following letter, prepared by the Department of Justice 
in the wake of the Supreme Court's decision in U.S. v. 
Morrison, 120 S. Ct. 1740 (2000), discusses in greater detail 
the constitutionality of the Hate Crimes Act:

                    U.S. Department of Justice,    
                     Office of Legislative Affairs,
                  Office of the Assistant Attorney General,
                                     Washington, DC, June 13, 2000.
The Honorable Edward Kennedy,
U.S. Senate, Washington, DC.
    Dear Senator Kennedy: This letter responds to your request 
for our views on the constitutionality of a proposed 
legislative amendment entitled the ``Local Law Enforcement 
Enhancement Act of 2000.'' Section 7(a) of the bill would amend 
title 18 of the United States Code to create a new section 249, 
which would establish two criminal prohibitions called ``hate 
crime acts.'' First, proposed section 249(a)(1) would prohibit 
willfully causing bodily injury to any person, or attempting to 
cause bodily injury to any person through the use of fire, a 
firearm, or an explosive or incendiary device, ``because of the 
actual or perceived race, color, religion, or national origin 
of any person.'' Second, proposed section 249(a)(2) would 
prohibit willfully causing bodily injury to any person, or 
attempting to cause bodily injury to any person through the use 
of fire, a firearm, or an explosive or incendiary device, 
``because of the actual or perceived religion, national origin, 
gender, sexual orientation, or disability of any person,'' 
section 249(a)(2)(A), but only if the conduct occurs in at 
least one of a series of defined ``circumstances'' that have an 
explicit connection with or effect on interstate or foreign 
commerce, section 249(a)(2)(B).
    In light of United States v. Morrison, 120 S. Ct. 1740 
(2000), and other recent Supreme Court decisions, defendants 
might challenge the constitutionality of their convictions 
under section 249 on the ground that Congress lacks power to 
enact the proposed statute. We believe, for the reasons set 
forth below, that the statute would be constitutional under 
governing Supreme Court precedents.\39\ We consider in turn the 
two proposed new crimes that would be created in section 249.
---------------------------------------------------------------------------
    \39\ Because you have asked specifically about the effect of 
Morrison on the constitutionality of the proposed bill, this letter 
addresses constitutional questions relating only to Congress' power to 
enact the proposed bill.

---------------------------------------------------------------------------
    1. Proposed 18 U.S.C. 249(a)(1)

    Congress may prohibit the first category of hate crime acts 
that would be proscribed--actual or attempted violence directed 
at persons ``because of the[ir] actual or perceived race, 
color, religion, or national origin,'' section 249(a)(1)--
pursuant to its power to enforce the 13th amendment to the U.S. 
Constitution.\40\ Section 1 of that amendment provides, in 
relevant part, ``[n]either slavery nor involuntary servitude * 
* *, shall exist within the United States.'' Section 2 
provides, ``Congress shall have power to enforce this article 
by appropriate legislation.''
---------------------------------------------------------------------------
    \40\ Given our conclusion that Congress possesses authority to 
enact this provision under the 13th amendment, we do not address 
whether Congress might also possess authority under the commerce clause 
and the 14th amendment.
---------------------------------------------------------------------------
    Under the 13th amendment, Congress has the authority not 
only to prevent the ``actual imposition of slavery or 
involuntary servitude,'' but to ensure that none of the 
``badges and incidents'' of slavery or involuntary servitude 
exists in the United States. Griffin v. Breckinridge, 403 U.S. 
88, 105 (1971); see Jones v. Alfred H. Mayer Co., 392 U.S. 409, 
440-43 (1968) (discussing Congress' power to eliminate the 
``badges,'' ``incidents,'' and ``relic[s]'' of slavery). 
``Congress has the power under the Thirteenth Amendment 
rationally to determine what are the badges and incidents of 
slavery, and the authority to translate that determination into 
effective legislation.'' Griffin, 403 U.S. at 105 (quoting 
Jones, 392 U.S. at 440); see also Civil Rights Cases, 109 U.S. 
3, 21 (1883) (``Congress has a right to enact all necessary and 
proper laws for the obliteration and prevention of slavery, 
with all its badges and incidents''). In so legislating, 
Congress may impose liability not only for State action, but 
for ``varieties of private conduct,'' as well. Griffin, 403 
U.S. at 105.
    Section 2(10) of the bill's findings provides, in relevant 
part, that ``eliminating racially motivated violence is an 
important means of eliminating, to the extent possible, the 
badges, incidents, and relics of slavery and involuntary 
servitude,'' and that ``[s]lavery and involuntary servitude 
were enforced * * * through widespread public and private 
violence directed at persons because of their race.'' So long 
as Congress may rationally reach such determinations--and we 
believe Congress plainly could \41\--the prohibition of 
racially motivated violence would be a permissible exercise of 
Congress' broad authority to enforce the 13th amendment.
---------------------------------------------------------------------------
    \41\ See, e.g., Patterson v. McLean Credit Union, 491 U.S. 183 
(1989); Jones, 392 U.S. at 441 n.78; Hodges v. United States, 203 U.S. 
1, 3435 (1906) (Harlan, J., dissenting), and citing Jones v. Alfred H. 
Mayer Co., 392 U.S. 409, 441 n.78 (1968). In McDonald, for example, the 
Supreme Court held that 42 U.S.C. 1981, a Reconstruction-era statute 
that was enacted pursuant to, and contemporaneously with, the 13th 
amendment, prohibits racial discrimination in the making and 
enforcement of contracts against all persons, including whites. See 
McDonald, 427 U.S. at 28696.
---------------------------------------------------------------------------
    That the bill would prohibit violence against not only 
African Americans but also persons of other races does not 
alter our conclusion. While it is true that the institution of 
slavery in the United States, the abolition of which was the 
primary impetus for the 13th amendment, primarily involved the 
subjugation of African Americans, it is well-established by 
Supreme Court precedent that Congress' authority to abolish the 
badges and incidents of slavery extends ``to legislat[ion] in 
regard to `every race and individual.' '' McDonald v. Santa Fe 
Trail Transp. Co., 427 U.S. 273, 288 n.18 (1976) (quoting 
Hodges v. United States, 203 U.S. 1, 16-17 (1906).
    The question whether Congress may prohibit violence against 
persons because of their actual or perceived religion or 
national origin is more complex, but there is a substantial 
basis to conclude that the 13th amendment grants Congress that 
authority, at a minimum, with respect to some religions and 
national origins. In Saint Francis College v. Al-Khazraii, 481 
U.S. 604, 613 (1987), the Court held that the prohibition of 
discrimination in 1981 extends to discrimination against Arabs, 
as Congress intended to protect ``identifiable classes of 
persons who are subjected to intentional discrimination solely 
because of their ancestry or ethnic characteristics.'' 
Similarly, the Court in Shaare Tefila Congregation v. Cobb, 481 
U.S. 615, 617-18 (1987), held that Jews can state a claim under 
42 U.S.C. 1982, another Reconstruction-era antidiscrimination 
statute enacted pursuant to, and contemporaneously with, the 
13th amendment. In construing the reach of these two 
Reconstruction-era statutes, the Supreme Court found that 
Congress intended those statutes to extend to groups like 
``Arabs'' and ``Jews'' because those groups ``were among the 
peoples [at the time the statutes were adopted] considered to 
be distinct races.'' Id; see also Saint Francis College, 481 
U.S. at 610-13. We thus believe that Congress would have 
authority under the 13th amendment to extend the prohibitions 
of proposed section 249(a)(1) to violence that is based on a 
victim's religion or national origin, at least to the extent 
the violence is directed at members of those religions or 
national origins that would have been considered races at the 
time of the adoption of the 13th amendment.\42\
---------------------------------------------------------------------------
    \42\ In light of the Court's construction of 1981 and 1982 in 
Shaare Tefila Congregation and St. Francis College, it would be 
consistent for the Court so to construe this legislation, especially 
with sufficient guidance from Congress.
---------------------------------------------------------------------------
    None of the Court's recent federalism decisions casts doubt 
on Congress' powers under the 13th amendment to eliminate the 
badges and incidents of slavery. Both Boeme v. Flores, 521 U.S. 
507 (1997), and United States v. Morrison, 120 S. Ct. 1740 
(2000), involved legislation that was found to exceed Congress' 
powers under the 14th amendment. The Court in Morrison, for 
example, found that Congress lacked the power to enact the 
civil remedy of the Violence Against Women Act (``VAWA''), 42 
U.S.C. 13981, pursuant to the 14th amendment because that 
amendment's equal protection guarantee extends only to ``state 
action,'' and the private remedy there was not, in the Court's 
view, sufficiently directed at such ``state action.'' 120 S. 
Ct. at 1756, 1758. The 13th amendment, however, plainly reaches 
private conduct as well as Government conduct, and Congress 
thus is authorized to prohibit private action that constitutes 
a badge, incident or relic of slavery. See Griffin, 403 U.S. at 
105; Jones, 392 U.S. at 440-43. Enactment of the proposed 
section 249(a)(1) therefore would be within Congress' 13th 
amendment power.

    2. Proposed 18 U.S.C. 249(a)(2)

    Congress may prohibit the second category of hate crime 
acts that would be proscribed certain instances of actual or 
attempted violence directed at persons ``because of the[ir] 
actual or perceived religion, national origin, gender, sexual 
orientation, or disability,'' section 249(a)(1)(A)--pursuant to 
its power under the commerce clause of the Constitution, art. 
I., section 8, cl. 3.
    The Court in Morrison emphasized that ``even under our 
modern, expansive interpretation of the Commerce Clause, 
Congress' regulatory authority is not without effective 
bounds.'' 120 S. Ct. at 1748; see also United States v. Lopez, 
514 U.S. 549, 557-61 (1995). Consistent with the Court's 
emphasis, the prohibitions of proposed section 249(a)(2) (in 
contrast to the provisions of proposed section 249(a)(1), 
discussed above), would not apply except where there is an 
explicit and discrete connection between the proscribed conduct 
and interstate or foreign commerce, a connection that the 
Government would be required to allege and prove in each case.
    In Lopez, the Court considered Congress' power to enact a 
statute prohibiting the possession of firearms within 1,000 
feet of a school. Conviction for a violation of that statute 
required no proof of a jurisdictional nexus between the gun, or 
the gun possession, and interstate commerce. The statute 
included no findings from which the Court could find that the 
possession of guns near schools substantially affected 
interstate commerce and, in the Court's view, the possession of 
a gun was not an economic activity itself. Under these 
circumstances, the Court held that the statute exceeded 
Congress' power to regulate interstate commerce because the 
prohibited conduct could not be said to ``substantially 
affect'' interstate commerce. Proposed section 249(a)(2), by 
contrast to the statute invalidated in Lopez, would require 
pleading and proof of a specific jurisdictional nexus to 
interstate commerce for each and every offense.
    In Morrison, the Court applied its holding in Lopez to find 
unconstitutional the civil remedy provided in VAWA, 42 U.S.C. 
13981. Like the prohibition of gun possession in the statute at 
issue in Lopez, the VAWA civil remedy required no pleading or 
proof of a connection between the specific conduct prohibited 
by the statute and interstate commerce. Although the VAWA 
statute was supported by extensive congressional findings of 
the relationship between violence against women and the 
national economy, the Court was troubled that accepting this as 
a basis for legislation under the commerce clause would permit 
Congress to regulate anything, thus obliterating the 
``distinction between what is truly national and what is truly 
local.'' Morrison, 120 5. Ct. at 1754 (citing Lopez, 514 U.S. 
at 568). By contrast, the requirement in proposed section 
249(a)(2) of proof in each case of a specific nexus between 
interstate commerce and the proscribed conduct would ensure 
that only conduct that falls within the commerce power, and 
thus is ``truly national,'' would be within the reach of that 
statutory provision.
    The Court in Morrison emphasized, as it did in Lopez, 514 
U.S. at 561-62, that the statute the Court was invalidating did 
not include an ``express jurisdictional element,'' 120 5. Ct. 
at 1751, and compared this unfavorably to the criminal 
provision of VAWA, 18 U.S.C. 2261(a)(1), which does include 
such a jurisdictional nexus. See id. at 1752 n.5. The Court 
indicated that the presence of such a jurisdictional nexus 
would go far toward meeting its constitutional concerns:

          The second consideration that we found important in 
        analyzing [the statute in Lopez] was that the statute 
        contained ``no express jurisdictional element which 
        might limit its reach to a discrete set of firearm 
        possessions that additionally have an explicit 
        connection with or effect on interstate commerce.'' 
        [514 U.S.] at 562. Such a jurisdictional element may 
        establish that the enactment is in pursuance of 
        Congress' regulation of interstate commerce.

Id. at 1750-51; see also id. at 1751-52 (``Although Lopez makes 
clear that such a jurisdictional element would lend support to 
the argument that [the provision at issue in Morrison] is 
sufficiently tied to interstate commerce, Congress elected to 
cast [the provision's] remedy over a wider, and more purely 
intrastate, body of violent crime.'').

    While the Court in Morrison stated that Congress may not 
``regulate noneconomic, violent criminal conduct based solely 
on that conduct's aggregate effect on interstate commerce,'' 
id. at 1754, the proposed regulation of violent conduct in 
section 249(a)(2) would not be based ``solely on that conduct's 
aggregate effect on interstate commerce,'' but would instead be 
based on a specific and discrete connection between each 
instance of prohibited conduct and interstate or foreign 
commerce. Specifically, with respect to violence because of the 
actual or perceived religion, national origin, gender, sexual 
orientation, or disability of the victim, proposed section 
249(a)(2) would require the Government to prove one or more 
specific jurisdictional commerce ``elements'' beyond a 
reasonable doubt. This additional jurisdictional requirement 
would reflect Congress' intent that section 249(a)(2) reach 
only a ``discrete set of [violent acts] that additionally have 
an explicit connection with or effect on interstate commerce,'' 
120 S. Ct. at 1751 (quoting Lopez, 514 U.S. at 562), and would 
fundamentally distinguish this statute from those that the 
Court invalidated in Lopez and in Morrison.\43\ Absent such a 
jurisdictional element, there exists the risk that ``a few 
random instances of interstate effects could be used to justify 
regulation of a multitude of intrastate transactions with no 
interstate effects.'' United States v. Harrington, 108 F.3d 
1460, 1467 (D.C. Cir. 1997). By contrast, in the context of a 
statute with an interstate jurisdictional element (such as in 
proposed section 249(a)(2)(B)), ``each case stands alone on its 
evidence that a concrete and specific effect does exist.'' 
Id.\44\
---------------------------------------------------------------------------
    \43\ See also Morrison, 120 S. Ct. at 1775 (Breyer, J., dissenting) 
(``the Court reaffirms, as it should, Congress' well-established and 
frequently exercised power to enact laws that satisfy a commerce-
related jurisdictional prerequisite--for example, that some item 
relevant to the federally regulated activity has at some time crossed a 
state line''). Of course, our reliance on the jurisdictional nexus in 
sec. 249(a)(2) is not intended to suggest that such a jurisdictional 
nexus is always necessary to sustain commerce clause legislation.
    \44\ That a jurisdictional element makes a material difference for 
constitutional purposes is demonstrated by the Lopez Court's citation 
to the jurisdictional element in the statute at issue in United States 
v. Bass, 404 U.S. 336 (1971), as an example of a provision that ``would 
ensure, through case-by-case inquiry, that the firearm possession in 
question affects interstate commerce.'' 514 U.S. at 561. The Lopez 
Court wrote:

        For example, in United States v. Bass, 404 U.S. 336 
      (1971), the Court interpreted former 18 U.S.C. 
      Sec. 1202(a), which made it a crime for a felon to 
      ``receiv[e], posses[s], or transpor[t] in commerce or 
      affecting commerce * * * any firearm.'' 404 U.S., at 337. 
      The Court interpreted the possession component of 
      Sec. 1202(a) to require an additional nexus to interstate 
      commerce both because the statute was ambiguous and because 
      ``unless Congress conveys its purpose clearly, it will not 
      be deemed to have significantly changed the federal-state 
---------------------------------------------------------------------------
      balance.'' Id., at 349.

514 U.S. at 561-62. In Bass itself, the Government argued that the 
statute in question should be construed not to require proof that the 
gun possession was in, or affected, interstate commerce. The Court 
responded that the Government's proposed ``broad construction'' would 
``render[] traditionally local criminal conduct a matter for federal 
enforcement and would also involve a substantial extension of federal 
police resources.'' 404 U.S. at 350. The Court accordingly construed 
the statute to require ``proof of some interstate commerce nexus in 
each case,'' so that the statute would not ``dramatically intrude[] 
upon traditional state criminal jurisdiction'' id., in the way it would 
if there were no requirement of proof in each case of the nexus to 
interstate commerce.
    The jurisdictional elements in section 249(a)(2)(B) would 
ensure that each conviction under section 249(a)(2) would 
involve conduct that Congress has the power to regulate under 
the commerce clause. In Morrison, the Court reiterated its 
observation in Lopez that there are ``three broad categories of 
activity that Congress may regulate under its commerce power.'' 
120 S. Ct. at 1749 (quoting Lopez, 514 U.S. at 558):

          First, Congress may regulate the use of the channels 
        of interstate commerce * * *. Second, Congress is 
        empowered to regulate and protect the instrumentalities 
        of interstate commerce, or persons or things in 
        interstate commerce, even though the threat may come 
        only from intrastate activities * * *. Finally, 
        Congress' commerce authority includes the power to 
        regulate those activities having a substantial relation 
        to interstate commerce, * * * i.e., those activities 
        that substantially affect interstate commerce.

Id. (quoting Lopez, 514 U.S. at 55859).

    Proposed section 249(a)(2)(B)(i) would prohibit the violent 
conduct described in section 249(a)(2)(A) where the Government 
proves that the conduct ``occurs in the course of, or as the 
result of, the travel of the defendant or the victim (a) across 
state lines or national borders, or (b) using a channel, 
facility, or instrumentality of interstate or foreign 
commerce.'' A conviction based on such proof would be within 
Congress' powers to ``regulate the use of the channels of 
interstate commerce,'' and to ``regulate and protect * * *, 
persons or things in interstate commerce.'' Proposed section 
249(a)(2)(B)(ii) would prohibit the violent conduct described 
in section 249(a)(2)(A) where the Government proves that the 
defendant ``uses a channel, facility or instrumentality of 
interstate or foreign commerce in connection with the 
conduct''--such as by sending a bomb to the victim via common 
carrier--and would fall within the power of Congress to 
``regulate the use of the channels of interstate commerce'' and 
``to regulate and protect the instrumentalities of interstate 
commerce.'' \45\
---------------------------------------------------------------------------
    \45\ Such prohibitions are not uncommon in the Federal criminal 
code. See, e.g., 18 U.S.C. 23 1(a)(2) (1994) (prohibiting the transport 
in commerce of any firearm, explosive, or incendiary device, knowing or 
having reason to know, or intending, that it will be used unlawfully in 
furtherance of a civil disorder); 18 U.S.C. 875 (1994) (prohibiting the 
transmission in interstate or foreign commerce of certain categories of 
threats and ransom demands); 18 U.S.C. 1201(a)(1) (Supp. IV 1998) 
(prohibiting the willful transportation in interstate or foreign 
commerce of a kidnaping victim); 18 U.S.C. 1462 (1994 & Supp. 111996) 
(prohibiting the transmission of obscene materials via common carrier); 
18 U.S.C. 1952 (1994) (prohibiting travel in interstate or foreign 
commerce, or the use of ``any facility in interstate or foreign 
commerce,'' with the intent to commit or facilitate certain unlawful 
activities).
---------------------------------------------------------------------------
    Proposed section 249(a)(2)(B)(iii) would prohibit the 
violent conduct described in section 249(a)(2)(A) where the 
Government proves that the defendant ``employs a firearm, 
explosive or incendiary device, or other weapon that has 
traveled in interstate or foreign commerce in connection with 
the conduct.'' \46\ Such a provision addresses harms that are, 
in a constitutionally important sense, facilitated by the 
unencumbered movement of weapons across State and national 
borders, and is similar to several other Federal statutes in 
which Congress has prohibited persons from using or possessing 
weapons and other articles that have at one time or another 
traveled in interstate or foreign commerce.\47\ The courts of 
appeals uniformly have upheld the constitutionality of such 
statutes.\48\ And, in Lopez itself, the Supreme Court cited to 
the jurisdictional element in the statute at issue in United 
States v. Bass, 404 U.S. 336 (1971), as an example of a 
provision that ``would ensure, through case-by-case inquiry, 
that the firearm possession in question affects interstate 
commerce.'' 514 U.S. at 561. In Bass, 404 U.S. at 350-51, and 
in Scarborough v. United States, 431 U.S. 563 (1977), the Court 
construed that statutory element to permit conviction upon 
proof that a felon had received or possessed a firearm that had 
at some time passed in interstate commerce.
---------------------------------------------------------------------------
    \46\ We understand that this subsection would sanction the conduct 
described in subparagraph (A) where, in connection with that conduct, 
the defendant employs a firearm, an explosive or incendiary device, or 
another weapon, that has traveled in interstate or foreign commerce.
    \47\ For example:

        It is unlawful for convicted felons to receive any 
      firearm or ammunition (18 U.S.C. 922(g) (1994 & Supp. 
      1999)), or to receive or possess any explosive (18 U.S.C. 
      842(i) (1994)), ``which has been shipped or transported in 
      interstate or foreign commerce.''
        A statute enacted as a response to Lopez makes it 
      unlawful (with certain exceptions) for any individual 
      knowingly to possess or discharge a firearm ``that has 
      moved in or that otherwise affects interstate or foreign 
      commerce at a place that the individual knows * * * is a 
      school zone.'' 18 U.S.C. 922(q) (2)(3) (1994 & Supp. 1999).
        It is unlawful, with the intent to cause death or serious 
      bodily harm, to engage in certain so-called carjackings of 
      motor vehicles that ``ha[ve] been transported, shipped, or 
      received in interstate or foreign commerce.'' 18 U.S.C. 
      2119 (West 2000).
        It is unlawful knowingly to possess matters containing 
      any visual depiction that ``involves the use of a minor 
      engaging in sexually explicit conduct'' that ``has been 
      mailed, or has been shipped or transported in interstate of 
      foreign commerce, or which was produced using materials 
      which have been mailed or so shipped or transported, by any 
      means including by computer.'' 18 U.S.C. 2252(a)(4)(B) 
      (West Supp. 2000).

    \48\ See, e.g., United States v. Folen, 84 F.3d 1103, 1104 (8th 
Cir. 1996) (sec. 842(i)); Fraternal Order of Police v. United States, 
173 F.3d 898, 90708 & n.2 (D.C. Cir.), and cases cited therein (sec. 
922(g)), cert. denied, 120 S. Ct. 324 (1999); Gillespie v. City of 
Indianapolis 185 F.3d 693, 704-06 (7th Cir. 1999), and cases cited 
therein (same), cert. denied, 120 5. Ct. 934 (2000); United States v. 
Bostic, 168 F.3d 718, 723-24 (4th Cir.), denied 527 U.S. 1029 (1999) 
(same); United States v. Danks, 187 F.3d 643 (8th Cir. 1999) (per 
curiam) (table), 1999 WL 6 15445 at * 1*2 (sec. 922(q)), cert. denied, 
120 5. Ct. 823 (2000); United States v. Cobb, 144 F.3d 319, 32022 (4th 
Cir. 1998), and cases cited therein (sec. 2119); United States v. 
Bausch, 140 F.3d 739, 741 (8th Cir. 1998) (sec. 2252(a)(4)(B)), denied 
525 U.S. 1072 (1999); United States v. Robinson, 137 F.3d 652, 65556 
(1st Cir. 1998) (same).
---------------------------------------------------------------------------
    Proposed section 249(a)(2)(B)(iv)(I) would apply only where 
the Government proves that the violent conduct ``interferes 
with commercial or other economic activity in which the victim 
is engaged at the time of the conduct.'' This is one specific 
manner in which the violent conduct can affect interstate or 
foreign commerce.\49\ This jurisdictional element also is an 
exercise of Congress' power to regulate ``persons or things in 
interstate commerce.'' Morrison, 120 5. Ct. at 1749 (quoting 
Lopez, 514 U.S. at 558). As Justice Kennedy (joined by Justice 
O'Connor) wrote in Lopez, 514 U.S. at 574, ``Congress can 
regulate in the commercial sphere on the assumption that we 
have a single market and a unified purpose to build a stable 
national economy.'' \50\
---------------------------------------------------------------------------
    \49\ See, e.g., United States v. Nguyen, 155 F.3d 1219, 122425 
(10th Cir. 1998), cert. denied 525 U.S. 1167 (1999); see also, e.g., 
United States v. Thomas, 159 F.3d 296, 297-98 (7th Cir. 1998), cert. 
denied, 527 U.S. 1023 (1999).
    \50\ In this regard, it is worth noting that at least eight 
Justices in Morrison and in Lopez indicated that Congress can take a 
broad view as to what constitutes ``commercial'' or ``economic'' 
activity. See Morrison, 120 S. Ct. at 1750 (listing, as examples of 
``congressional Acts regulating intrastate economic activity,'' the 
statutes at issue in Wickard v. Filburn, 317 U.S. 111 (1942) 
(restricting the intrastate growing of wheat on a farm for personal 
home consumption); and Perez v. United States, 402 U.S. 146 (1971) 
(prohibiting intrastate loansharking); id. at 1750 n.4 (describing the 
statute in Wickard as ``regulat[ing] activity * * * of an apparent 
commercial character''); id. at 1765 (Souter, J., dissenting); see also 
Lopez, 514 U.S. at 560-61; id. at 573 (Kennedy, J., dissenting); id. at 
628-30 (Breyer, J., dissenting).
---------------------------------------------------------------------------
    Finally, proposed section 249(a)(2)(B)(iv)(II) would 
prohibit the violent conduct described in section 249(a)(2)(A) 
where the Government proves that the conduct ``otherwise 
affects interstate or foreign commerce.'' Such ``affects 
commerce'' language has long been regarded as the appropriate 
means for Congress to invoke the full extent of its authority. 
See, e.g., Jones v. United States, 120 5. Ct. 1904 (2000), No. 
99-5739, slip op. at 5 (May 22, 2000) (``the statutory term 
`affecting * * * commerce,' * * * when unqualified, signal[s] 
Congress' intent to invoke its full authority under the 
Commerce Clause''); Allied-Bruce Terminix Cos. v. Dobson, 513 
U.S. 265, 273 (1995) (``Th[e] phrase--`affecting commerce'--
normally signals Congress' intent to exercise its Commerce 
Clause powers to the full.'').\51\ Of course, that this element 
goes to the extent of Congress' constitutional power does not 
mean that it is unlimited. Interpretation of the ``affecting * 
* * commerce'' provision would be addressed on a case-by-case 
basis, within the limits established by the Court's doctrine. 
There likely will be cases where there is some question whether 
a particular type or quantum of proof is adequate to show the 
``explicit'' and ``concrete'' effect on interstate and foreign 
commerce that the element requires. See Harrington, 108 F.3d at 
1464, 1467 (citing Lopez, 514 U.S. at 562, 567). But on its 
face this element is, by its nature, within Congress' commerce 
clause power.\52\
---------------------------------------------------------------------------
    \51\ Such a jurisdictional element is found in many Federal 
statutes, including criminal provisions that prohibit violent conduct 
or conduct that facilitates violence. See, e.g.:

        18 U.S.C. 231(a)(1) (1994) (prohibiting the teaching or 
      demonstration of the use or making of firearms, explosives, 
      or incendiary devices, or of techniques capable of causing 
      injury or death, knowing or having reason to know or 
      intending that the teaching or demonstration will be 
      unlawfully employed in, or in furtherance of, a civil 
      disorder ``which may in any way or degree obstruct, delay, 
      or adversely affect commerce or the movement of any article 
      or commodity in commerce'');
        18 U.S.C.A. 247 (a)(b) (West 2000) (prohibiting the 
      intentional defacement, damaging or destruction of 
      religious real property because of the religious character 
      of that property, and the intentional obstruction by force 
      or threat of force of any person in the enjoyment of that 
      person's free exercise of religious beliefs, where ``the 
      offense is in or affects interstate or foreign commerce'');
        18 U.S.C.A. 2332(a)(2) (West Supp. 2000) (prohibiting the 
      use, without lawful authority, of a weapon of mass 
      destruction, including any biological agent, toxin, or 
      vector, where the results of such ``affect interstate or 
      foreign commerce'').
---------------------------------------------------------------------------
    \52\ See United States v. Green, 350 U.S. 415, 420 21 (1956) 
(upholding constitutionality of Hobbs Act, 18 U.S.C. 1951(a) (1994)--
which prohibits robbery or extortion that ``in any way or degree 
obstructs, delays, or affects commerce or the movement of any article 
or commodity in commerce''--because ``racketeering affecting interstate 
commerce [is] within federal legislative control''); see also United 
States v. Valenzeno, 123 F.3d 365, 36768 (6th Cir. 1997) (affirming 
that Lopez did not affect constitutionality of Hobbs Act); United 
States v. Robinson, 119 F.3d 1205, 121214 (5th Cir. 1997) (same), cert. 
denied, 522 U.S. 1139 (1998).
---------------------------------------------------------------------------
    In sum, because section 249(a)(2) would prohibit violent 
conduct in a ``discrete set'' of cases, 120 S. Ct. at 1751 
(quoting Lopez, 514 U.S. at 562), where that conduct has an 
``explicit connection with or effect on'' interstate or foreign 
commerce, id., it would satisfy the constitutional standards 
articulated in the Court's recent decisions.\53\
---------------------------------------------------------------------------
    \53\ Any argument that Morrison sub silentio implies that Congress 
lacks any power whatever under the commerce clause to regulate violent 
crime (or that Congress may do so only where each violation by itself 
``substantially affect'' interstate or foreign commerce), is 
unwarranted. For reasons explained above, the presence of a 
jurisdictional element materially distinguishes a statute such as 
proposed sec. 249(a)(2) from the statutes at issue in Lopez and in 
Morrison. The Court in Morrison explained that such an element helps to 
ensure that the statute will reach only ``a discrete set'' of offenses, 
and will not extend to conduct that lacks an ``explicit connection with 
or effect on interstate commerce.'' 120 Ct. at 1751 (quoting Lopez, 514 
U.S. at 562). What is more, the findings in sections 2 (6)(9) of the 
draft bill would, if adopted by Congress, reflect Congress' conclusion 
that the bill's proposed sec. 249(a)(2) is appropriate legislation 
under each of the three commerce clause ``categories'' identified in 
Lopez and in Morrison. Section 2(6) would find that the violence in 
question ``substantially affects interstate commerce in many ways, 
including--(A) by impeding the movement of members of targeted groups 
and forcing such members to move across State lines to escape the 
incidence or risk of such violence; and (B) by preventing members of 
targeted groups from purchasing goods and services, obtaining or 
sustaining employment or participating in other commercial activity.'' 
Sections 2 (7)(9) would find that perpetrators ``cross State lines to 
commit such violence,'' use the channels, facilities and 
instrumentalities of interstate commerce to commit such violence, and 
use articles that have traveled in interstate commerce to commit such 
crimes. While such findings might not in and of themselves be 
``sufficient'' to justify Congress' assertion of its commerce clause 
authority, see Morrison, 120 5. Ct. at 1752, nevertheless they would 
provide important support for Congress' authority under the commerce 
clause to enact the draft hate-crimes bill's proposed 249(a)(2), see 
120 S. Ct. at 1751 (citing Lopez, 514 U.S. at 563).
---------------------------------------------------------------------------
    The Office of Management and Budget has advised that there 
is no objection from the standpoint of the administration's 
program to the presentation of this letter.
            Sincerely,
                                              Robert Raben,
                                        Assistant Attorney General.

                   VI. Not All Crimes Are Hate Crimes

    Opponents of the hate crimes bill often argue that ``any 
crime of violence is a hate crime,\54\ and that the motives 
behind and harms caused by a hate crime are not relevant or 
distinguishable from other crimes. This view, however, is not 
supported by history or Supreme Court precedent. Not all crimes 
are created equal, and mental states--not just acts--have 
always been an important factor in determining the severity of 
a crime.
---------------------------------------------------------------------------
    \54\ Statement of Senator Inhofe, Congressional Record, June 21, 
2000.
---------------------------------------------------------------------------
    Today, motive permeates the criminal law in two contexts: 
as proof of an element of an offense and in sentencing. As an 
example of the former, under Federal law, the ``unlawful 
killing of a human being'' constitutes manslaughter.\55\ But if 
the same killing is done ``with malice aforethought,'' the 
crime is murder and a more severe punishment can be levied.\56\ 
Proof that the perpetrator intentionally selected the victim 
and thus premeditated the crime suffices to show the additional 
element necessary to establish murder. An additional example of 
where motive is relevant is the crime of burglary. If one 
simply enters a building, he or she is guilty of trespass, a 
misdemeanor.\57\ However, if one enters the building with the 
motive of committing a felony (e.g. larceny) inside, he or she 
is guilty of burglary, a felony.\58\
---------------------------------------------------------------------------
    \55\ 18 U.S.C. 1112.
    \56\ 18 U.S.C. 1111.
    \57\ See, e.g., N.Y. Penal Law Sec. 140.10.
    \58\ See, e.g., N.Y. Penal Law Sec. 140.20.
---------------------------------------------------------------------------
    As the Supreme Court recognized in Payne v. Tennessee, 501 
U.S. 808, 819-20 (1991):

          The assessment of harm caused by the defendant as a 
        result of the crime charged has understandably been an 
        important concern of the criminal law, both in 
        determining the elements of the offense and in 
        determining the appropriate punishment. * * * Wherever 
        judges in recent years have had discretion to impose 
        sentence, the consideration of the harm caused by the 
        crime has been an important factor in the exercise of 
        that discretion.
          [I]n evaluating the gravity of the offense, it is 
        appropriate to consider ``the harm caused or threatened 
        to the victim or society,'' based on such things as the 
        degree of violence involved in the crime and ``the 
        absolute magnitude of the crime,'' and ``the 
        culpability of the offender,'' including the degree of 
        requisite intent and the offender's motive in 
        committing the crime.

(quoting Solem v. Helm, 463 U.S. 277, 292-94 (1983).

    Recognizing these notions, it is well established that a 
legislature can properly determine that crimes committed 
against certain classes of individuals are different or warrant 
a stiffer response. See, e.g., 18 U.S.C. 2251 (criminal 
penalties for sexual exploitation of children); 18 U.S.C. 1751 
(criminal penalties for assassination, kidnaping, or assault of 
the President or Presidential staff.) In fact, the most extreme 
example is the Federal law against genocide. That law applies 
to anyone who targets ``a national, ethnic, racial, or 
religious group'' for certain acts of criminal violence ``with 
the specific intent to destroy [that group] in whole or in 
substantial part.'' 18 U.S.C. 1091(a).
    In fact, several States that lack hate crimes statutes have 
laws on their books that treat crimes differently based upon 
whether the victim belongs to a particular class. For example, 
in Arkansas, it is considered more serious to injure a child, a 
senior citizen, or a pregnant woman than another individual. 
See, A.C.A. Sec. 513201. That is also true if one injures a 
policeman, a teacher, or a doctor. See, A.C.A. Sec. 513202. One 
can even receive an enhanced sentence for physically abusing a 
high school football referee. See, A.C.A Sec. 513209. Likewise, 
in Indiana, it is considered more serious to commit a battery 
against a law enforcement officer, an employee of a penal 
facility or a firefighter than other individuals. Similarly, it 
is considered a felony to cause injury to a child, a disabled 
individual, a health care professional, school personnel, or a 
health care provider. But, it is only a misdemeanor if one 
causes injury to anyone else not included in the above 
mentioned classes. See I.C. Sec. 354221. In New Mexico, 
pregnant women and school personnel are singled out as classes 
of people for which an individual can receive an enhanced 
sentence. See NM Sec. 3037, Sec. 3039. Finally, in South 
Carolina it is considered more serious to injure school 
personnel, correctional facility employees, emergency service 
providers, firefighters, and home health care workers. See SC 
St Sec. 16312, Sec. 163630, Sec. 163635. As these statutes 
show, it is quite appropriate for a legislature to determine 
that certain crimes, because of the nature of harm caused or 
the status of the victim, are more serious than parallel 
offenses.
    This Committee believes that hate crimes are different than 
other crimes and often cause unique harms. As Senator Hatch 
stated, ``[l]et me state unequivocally that as much as we 
condemn all crime, hate crime can be more sinister than non-
hate crime. A crime committed not just to harm an individual 
but out of motive of sending a message of hatred to an entire 
community, oftentimes a community defined on the basis of 
immutable traits, is appropriately punished more harshly or in 
a different manner than other crimes.'' \59\ Senator Hatch is 
not alone in articulating this view.
---------------------------------------------------------------------------
    \59\ Judiciary Committee hearing on Combating Hate Crimes, May 11, 
1999.
---------------------------------------------------------------------------
    In fact, the Supreme Court has stated that ``the true 
measure of crimes is the injury done to society.'' Payne, 111 
S. Ct. 2597, 2605 (1991). And, the Court has specifically 
stated that, with regard to the State's interests in 
``[ensuring] the basic human rights of members of groups that 
have historically been subjected to discrimination, including 
the right of such members to live in peace where they wish, we 
do not doubt that these interests are compelling.'' R.A.V., 112 
S. Ct. at 2549.
    With specific regard to hate crime legislation, in 
Wisconsin v. Mitchell, the Court unanimously recognized that 
bias-inspired conduct inflicts greater individual and societal 
harm. The Court adopted the position articulated in several 
amici that ``bias-motivated crimes are more likely to provoke 
retaliatory crimes, inflict distinct emotional harms on their 
victims, and incite community unrest.'' 508 U.S. 476, 487.
    Moreover, the impact of bias motivated crimes on the larger 
community is grave. As Justice Stevens notes in his concurring 
opinion in R.A.V., 505 U.S. at 377:

          One need look no further than the recent social 
        unrest in the Nation's cities to see that race-based 
        threats cause more harm to society and to individuals 
        than other threats. Just as the statute prohibiting 
        threats against the President is justifiable because of 
        the place of the President in our social and political 
        order, so a statute prohibiting race-based threats is 
        justifiable because of the place of race in our social 
        and political order.

    VII. Examples of Violent Hate Crimes Not Covered by Existing Law


December 1993, Humboldt, NE

    On Christmas Day in 1993, Brandon Teena, 21, was raped and 
beaten by two male ``friends'' who discovered that Brandon, who 
had been living as a male, was anatomically female. Teena, born 
Teena Brandon, was anticipating undergoing gender reassignment 
surgery. The men threatened to kill Teena if he went to the 
authorities to report the rape. Despite these threats, Teena 
reported the crime to the police. Even so, the county sheriff, 
who referred to Teena as ``it,'' did not allow his deputies to 
arrest the two men. Five days later the two men sought out 
Teena and shot and stabbed him to death. His mother later filed 
a civil suit against the county in which the court found that 
the county was partially responsible for Teena's death because 
the two men were not arrested after the report of the rape. The 
court characterized the sheriff's behavior as ``extreme and 
outrageous.''

January 1999, Port Monmouth, NJ

    E.K. a mentally disabled man was kidnapped by a group of 
nine men and women and was tortured for 3 hours, then dumped 
somewhere with a pillowcase over his head. While captive, he 
was taped to a chair, his head was shaved, his clothing was cut 
to shreds, and he was punched, whipped with a string of beads, 
beaten with a toilet brush, and, possibly, sexually assaulted. 
Prosecutors believe the attack was motivated by disability 
bias.

February 15, 1999, Yosemite National Park, CA

    A man bound, gagged, and eventually killed a woman, her 
daughter, and a young woman friend in the women's hotel room 
just outside Yosemite National Park in Northern California. The 
bodies of the mother and the young friend were found a month 
later in the trunk of their car, so badly burned that the cause 
of death was difficult to establish. The daughter's body was 
found nearby, her throat slashed so deeply she was nearly 
decapitated. According to the murderer, he sexually assaulted 
her for hours before killing her. A few months later the same 
man struck in Yosemite again, attacking a young woman in her 
home. After an intense struggle the man decapitated the young 
woman and dumped her body in a stream behind the home. He has 
since confessed to all the murders, explaining that he has 
fantasized about killing women for the last 30 year. He did not 
know any of his victims; he admittedly targeted them simply 
because they were women.

January 2000, Boston, MA

    A group of high school teenagers sexually assaulted and 
attacked a 16-year-old Boston High School student on the subway 
because she was holding hands with another young girl, a common 
custom in their native African country. Thinking the victim was 
a lesbian, the group began groping the girl, ripping her 
clothes and pointing at their own genitals, while shouting ``Do 
you like this? Do you like this? Is this what you like?'' When 
the girl resisted, according to officials, one of the teenagers 
allegedly pulled a knife on the girl, held it to her throat and 
threatened to slash her if she didn't obey her attackers. The 
girl passed out from being beaten.

May 2000, Salt Lake City, UT

    A 19-year-old woman working for the Southern Utah 
Wilderness Alliance in Salt Lake City was beaten and robbed 
because her attackers presumed she was a lesbian. The woman was 
canvassing when a male attacker in his 20's, one of two white 
men with shaved heads, came running up behind her, punched her 
in the face, knocking her down. The women said the suspect then 
kicked her in the face while he yelled ``dyke'' and ``queer.'' 
Initially, police response was slow, and the incident was not 
being treated as a hate crime. After pressure from local 
activists, police have said they are investigating the case as 
a potential hate crime.

June 2000, New York, NY

    Amanda Milan, a 27-year-old transgender woman died after 
her throat was slashed with a knife outside of the Port 
Authority in New York City. Witnesses say that a group of cab 
drivers cheered, applauded and shouted transgenderphobic 
remarks as the crime was committed. One of the perpetrators 
allegedly shouted phrases like ``You're a man!'' and ``I know 
that's a dick between your legs.''

February 11, 2001, Rifle, CO

    Kyle Skyock, a slightly built 16-year-old, was found 
unconscious by a jogger on the side of the road after being 
beaten by four teenage boys because they thought he was gay, he 
said. Skyock's injuries included: large purple bruises on the 
front and back of his head; a fractured skull; a circle of burn 
blisters on his shoulder; a black eye; three broken ribs; a 
foot-shaped bruise on his stomach; another bruise described by 
doctors as in the shape of a two-by-four. Skyock claims to have 
left a party with the four boys in a four-wheel-drive vehicle. 
Eventually, the car stopped, Skyock said, and he was pulled 
from the vehicle and thrown to the ground, and the boys started 
kicking him. They picked him up, ramming his head into the 
tailgate. They threw him back in the vehicle and punched him 
some more. They pulled him out and kicked him again. 
``Faggot,'' ``I want a turn with the bat! Give it to me. It's 
my turn, it's my turn,'' he said he heard. Police initially 
have said they believe that Skyock was drunk, and his injuries 
were a result of falling down. Skyock's family has been 
critical of how the police have handled the case and have said 
that after the incident one of the alleged perpetrators 
reportedly bragged on the school bus that he had beaten up a 
``fag.'' After 7 months, police finally interviewed Skyock 
after his family hired an attorney to pursue charges being 
filed against the alleged perpetrators. Previously, they 
refused to talk to him because they said his mother insisted on 
having an adult present with him. As of April 2002, no charges 
have been filed, and the family has filed a civil case against 
the alleged perpetrators (Rocky Mountain News, August 27 and 
30, 2001.)

May 25, 2001, Honolulu, HI

    Two teens were charged with attempted murder after 
allegedly dousing the tents of gay campers, while people were 
inside, with flammable liquid and setting one on fire in 
Polihale State Park. Police believe the crime is a hate crime 
based on ``insinuations and remarks'' made by the suspects at 
the time. Victims in the attack said the perpetrators threw 
rocks and shouted homosexual slurs at about 20 men prior to 
setting the tent on fire. Two men, Eamonn Carolan, 18, and 
Orien Macomber, 19, were each sentenced for 5 years in prison 
each. (Associated Press, June 2, 2001; KITV 
TheHawaiiChannel.com, June 1, 2001; Kauai World, Jan. 21, 
2002.)

June 6, 2001, Chicago, IL

    A young Chicago man is accusing police of ignoring his 
pleas for help after gay-bashing incident in May that ended 
with his being criminally charged. Benjamin Stephens, a 21-
year-old North Sider, said that he was out to dinner with a 
friend when three men lured him from the restaurant, beat him 
and called him ``faggot.'' A stranger saw the incident and 
drove to the police station, where he said officers refused to 
help find the men who'd attacked him. Stephens said he became 
angry, and officers arrested him, hitting him and shoving him 
around. The incident comes on top of a suit filed earlier this 
year by a man who says he was beaten by off-duty Chicago police 
officers because they mistakenly thought he was gay. An Amnesty 
International report released earlier this year titled, 
``Allegations of homophobic abuse by Chicago police officers,'' 
alleges a series of antigay incidents, involving abuse and 
torture by Chicago police over the past few years. (Windy City 
Times, June 6, 2002; Chicago Tribune, Jan. 12, 2001; 
www.Amnesty.org, June 5, 2001.)

June 9, 2001, Washington, DC

    Alexander Gray, 22, was reportedly jumped and beaten by a 
group of men who called him ``faggot'' hours before he was 
fatally shot by a DC police officer. Police are calling the 
beating a probable hate crime and have identified several 
suspects. Emergency medical technicians (EMT) and police 
reportedly found Gray laying on the sidewalk, crying in 
southeast Washington in response to a call. Gray told them 
about the attack. Gray, who had a cut over his eye and a gash 
on his head, refused medical treatment and an offer to be taken 
to the hospital for observation. Gray was reportedly handcuffed 
and placed in a police car after he began cursing officers and 
threatened to assault several bystanders. Police drove him 
home, but Gray stopped by a neighbor's house after being 
dropped off. The neighbor called 911 after Gray began spitting 
up blood. EMT's responded and again examined him; again, he 
refused treatment and said that ``all he wanted to do was to go 
home and lie down.'' He reportedly started walking home but was 
soon being followed by two police officers, who told him he was 
not dressed appropriately, as his pants were torn, possibly due 
to the assault, and his underwear was exposed. He began to jog; 
the officers chased him and later shot him because they said he 
was wielding a knife at some people who were playing dice. 
Witnesses say they never saw a knife. Police have launched an 
investigation into the shooting, and the U.S. Attorney's office 
has convened a grand jury to look at the shooting. (Washington 
Blade, June 29, July 6, Dec. 21, 2001.)

August 26, 2001, Leawood, KS

    Gary D. Raynal, an openly-gay, 44-year-old man, was found 
dead under an apartment deck after being tortured and severely 
beaten by at least two people, according to police. Raynal had 
been sexually tortured with a metal rod, according to his 
sister, Sandra Sheppard, and officials familiar with the 
investigation. His ears had also been burned, and he might have 
been strangled. His sister thinks he was killed because he was 
gay. Police have said they have suspects in the case and are 
investigating the possibility that antigay bias may have played 
a role in the crime. (Kansas City Star, Aug. 30 and Sept. 1, 
2001, Interview with Police Sergeant Scott Hansen, Sept. 6, 
2001.)

September 2001, San Antonio, TX

    Al Everton, 74, was attacked by a man yelling antigay 
epithets and hit in the head with a baseball bat as he walked 
his dog at 3 a.m. Everton, along with his partner, Al Thurk, 
reported the incident to police the next day, describing the 
attacker and what he was wearing in great detail and informing 
police that they thought it might be one of their neighbors. 
The neighbor had been questioning the couple about their 
relationship in the weeks before the attack and making antigay 
comments. Everton was treated and released at a local hospital. 
Sore and bruised from the attack and already in frail health, 
Everton was bedridden afterwards. His condition declined 
rapidly, and he died a few weeks later. According to a news 
report, no charges have been made; no searches done for the 
possible weapon; and no description of the alleged perpetrator 
can be found in the police report despite it being given to 
them. (San Antonio Current, Feb. 14, 2002.)

September 2, 2001, Athens, GA

    Christopher Gregory, a 20-year-old gay man was left with 
facial injuries after being attacked in an antigay incident 
outside a gay bar. Gregory was walking with friends when group 
of approximately four men and three women began shouting 
antigay epithets at them, such as ``faggot,'' ``look at those 
faggots,'' and ``[expletive]-packers.'' After he turned and 
said, ``Leave us alone!'' one of the men allegedly punched him 
in the right eye, sending him to the concrete. He did not see 
the punch coming and landed on his face. As the alleged 
perpetrators walked away, one yelled, ``stupid faggot.'' 
Gregory was treated at a local hospital and reported the 
incident to police. He said the police were ``anything but 
sympathetic'' and were more concerned with his alcohol 
consumption than details about the bashing. The police filed 
the report as a hate crime that was alcohol related, have not 
interviewed witnesses and do not have any suspects, according 
to new reports. (Southern Voice, Sept. 13, 2001.)

September 6, 2001, Madison, WI

    Two men were arrested on the University of Wisconsin campus 
for their part in attempting to strangle a gay man. The 
Reverend Chuck Spignola brought a group to campus to talk about 
abortion and homosexuality. One of his followers allegedly told 
a gay man that his time had come to go to hell and started 
choking him. Spignola himself had been arrested in June 2000 in 
an incident where he poured gasoline on a security volunteer at 
a gay pride parade in Columbus, OH. The volunteer had just 
asked Spignola to step away from participants when he sprayed 
her with gas. ``You're all gonna burn in hell,'' he yelled. He 
then set fire to a rainbow-colored gay pride flag, which he had 
done on several earlier occasions. (WISC Channel3000.com, Sept. 
7, 2001; www.tolerance.org website, Sept. 7, 2001.)

October 7, 2001, Palm Springs, CA

    Eric Bridge, a 22-year-old man, told police he was robbed 
and beaten unconscious by four men who chased him from a 
downtown bar after accusing him of being gay and hurling 
antigay slurs at him. Bridge was treated for cuts and bruises 
at a local medical center and released. The victim said he 
wasn't gay but believes he was targeted based on perception. 
(Washington Blade, Oct. 19, 2001.)

October 11, 2001, College Park, MD

    University of Maryland campus police are investigating a 
violent hate crime that occurred on National Coming-Out Day. 
Around 1 p.m. a 22-year-old woman wearing gay-supportive pins 
was hanging her bicycle on her rack when a man approached her 
from behind and struck her on the back of her head, pushing her 
head into the rack and knocking her to the ground. The white 
male kicked her several times while she was on the ground as he 
hurled antilesbian epithets and expletives, according to the 
police. The woman, who was treated at the University health 
center sustained a black eye, a bruise on her nose and 
scratches on her legs and arms. The woman only saw the man's 
leg, and police have no suspects. (Prince George's Journal, 
Oct. 14, 2001, Washington Blade, Oct. 19, 2001.)

November 2, 2001, Cedaredge, CO

    Local authorities opened the files into the investigation 
of the October 2000 shooting death of a gay man, Steve Ruck, 
31, in response to legal pressure from a local newspaper. 
Authorities ruled the death as a suicide, but hazy details and 
unanswered questions about the incident have led local gay-
rights groups to say that it might have been a hate crime. Ruck 
died of a gunshot wound to the head and was in the bedroom of a 
neighbor, Bobby Wells, when the shooting occurred. Ruck and 
Wells had spent the day golfing and drinking and both were 
intoxicated at the time of his death. Wells gave authorities 
numerous accounts of what happened before the shooting. 
Initially, he said he was not in the trailer when Ruck died. 
Later, he said he and Ruck were lying on the bed in the dark, 
and he did not see Ruck shoot himself. He also said they were 
sitting in the bedroom when the shot occurred. He also that 
Ruck had at one point placed a loaded pistol to his head. 
Ruck's blood was splattered on Well's clothing and feet showing 
that he was 4 to 6 feet away from the victim at the time of the 
shooting. Wells said he is not gay and has no animosity toward 
gays. He said in one interview that he had no idea that Ruck 
was gay. In another he said he might have heard he was. (Denver 
Post, Nov. 2, 2001.)

                            VIII. Conclusion

    The enactment of the Local Law Enforcement Enhancement Act 
of 2001 will significantly increase the ability of State and 
Federal law enforcement agencies to work together to solve and 
prevent a wide range of violent hate crimes committed because 
of bias based on the actual or perceived race, color, national 
origin, religion, sexual orientation, gender, or disability of 
the victim. This bill is a necessary, thoughtful, and measured 
response to the critical problem of hate-motivated violence 
facing our Nation.

                           IX. Cost Estimate

    In compliance with paragraph 11(a) of rule XXVI of the 
standing Rules of the Senate, the Committee sets forth, with 
respect to the bill, S. 625, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 403 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, September 7, 2001.
Hon. Patrick J. Leahy,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 625, the Local Law 
Enforcement Enhancement Act of 2001.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Mark 
Grabowicz (for federal costs) and Shelley Finlayson (for the 
state and local impact).
            Sincerely,
                                          Dan L. Crippen, Director.
Enclosure.

               congressional budget office--cost estimate

S. 625--The Local Law Enhancement Act of 2001
    Summary

    S. 625 would establish certain hate crimes as new federal 
offenses and would direct the U.S. Sentencing Commission to 
consider increasing prison sentences for certain hate crimes 
involving juveniles. The bill also would authorize the 
appropriation of:

   $5 million for each of fiscal years 2002 and 2003 
        for the Department of Justice (DOJ) to make grants to 
        state and local governments to investigate and 
        prosecute hate crimes;

   Such sums as may be necessary for DOJ to make grants 
        to state and local governments to combat juvenile hate 
        crimes; and

   Such sums as may be necessary for fiscal years 2002 
        through 2004 for additional personnel in DOJ and the 
        Department of the Treasury to prevent, investigate, and 
        prosecute hate crimes.

    Assuming appropriation of the authorized and estimated 
amounts, CBO estimates that implementing S. 625 would cost $20 
million over the 2002-2006 period. This legislation could 
affect direct spending and receipts; therefore, pay-as-you-go 
procedures would apply.
    S. 625 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would benefit state, local, and tribal governments. The 
bill would establish grant programs and authorize the Attorney 
General to provide assistance to combat hat crimes. Any costs 
incurred by these governments would be the result of complying 
with grant conditions and would be voluntary.

    Estimated cost to the Federal Government

    The estimated budgetary impact of S. 625 is shown in the 
following table. The costs of this legislation fall within 
budget function 750 (administration of justice).

              CHANGES IN SPENDING SUBJECT TO APPROPRIATION
                [By fiscal year, in millions of dollars]
------------------------------------------------------------------------
                                   2002    2003    2004    2005    2006
------------------------------------------------------------------------
Estimated authorization level...      10      10   (\1\)       0       0
Estimated outlays...............       2       7       7       4       0
------------------------------------------------------------------------
\1\ Less than 500,000.


    Basis of estimate

    Based on information from the Department of Justice, CBO 
assumes that the bill's authorization for grants to combat 
juvenile hate crimes would cost an additional $5 million for 
each of fiscal years 2002 and 2003--the same amount that the 
bill would authorize for grants to state and local governments 
to combat hate crimes. We assume that the necessary amounts 
will be appropriated by the start of each fiscal year and that 
outlays will follow the historical rates for similar grant 
programs.
    Based on information from the U.S. Sentencing Commission, 
CBO expects that the new federal hate crimes established by the 
bill would apply to well under 50 cases annually. Thus, any 
increase in costs to DOJ, the Department of the Treasury, and 
the federal judiciary for law enforcement, court proceedings, 
or prison operations would be less than $500,000 annually, 
subject to the availability of appropriated funds.
    Because those prosecuted and convicted under S. 625 could 
be subject to criminal fines, the federal government might 
collect additional fines if the legislation is enacted. 
Collections of such fines are recorded in the budget as 
governmental receipts (revenues), which are deposited in the 
Crime Victims Fund and later spent. CBO expects that any 
additional receipts and direct spending would be negligible 
because of the small number of cases involved.

    Pay-as-you-go considerations

    The Balanced Budget and Emergency Deficit Control Act 
specifies pay-as-you-go procedures for legislation affecting 
direct spending and receipts. These procedures would apply to 
S. 625 because it would affect both direct spending and 
receipts, but CBO estimates that the annual amount of such 
changes would not be significant.

    Estimated impact on state, local, and tribal governments

    S. 625 contains no intergovernmental mandates as defined in 
UMRA and would benefit state, local, and tribal governments. 
The bill would authorize the Attorney General to provide 
assistance to state and tribal governments in investigating and 
prosecuting hate crimes. The bill would authorize the Attorney 
General to award $5 million in each of fiscal years 2002 and 
2003 to state, local, and tribal governments to defray up to 
$100,000 of the costs associated with investigating and 
prosecuting a hate crime. It also would authorize grants to be 
awarded to state and local governments with programs to combat 
juvenile hate crimes. Any costs incurred by state, local, or 
tribal governments would be the result of complying with grant 
conditions and would be voluntary.

    Estimated impact on the private sector

    S. 625 contains no private-sector mandates as defined in 
UMRA.

    Estimate prepared by: Federal Costs: Mark Grabowicz.
    Impact on State, Local, and Tribal Governments: Shelley 
Finlayson.
    Impact on the Private Sector: Paige Piper/Bach.
    Estimate approved by: Peter H. Fontaine, Deputy Assistant 
Director for Budget Analysis.

                     X. Regulatory Impact Statement

    In compliance with paragraph 11(b)(1), rule XXVI of the 
Standing Rules of the Senate, the Committee, after due 
consideration, concludes that S. 625 will not have significant 
regulatory impact.

                   XI. MINORITY VIEW OF SENATOR HATCH

                            i. introduction

    Crimes motivated by hate are especially sinister because 
they are motivated not only by a desire to harm an individual, 
but also by an intent to send a message of hatred to an entire 
community--a community often defined on the basis of immutable 
traits. The brutal murders of James Byrd and Matthew Shepard, 
among others, remain seared into our nation's conscience 
because of the savagery they suffered solely because of their 
attackers' irrational, hateful prejudice.
    Such atrocities in many instances are appropriately 
punished more harshly than other crimes. It is a long-standing 
principle of criminal justice--as reaffirmed recently by the 
United States Supreme Court in a unanimous decision upholding 
Wisconsin's sentencing enhancement for hate crimes--that the 
worse a criminal defendant's motive, the worse the crime. See 
Wisconsin v. Mitchell, 508 U.S. 476 (1993). In addition, hate 
crimes cause greater harm because they are more likely to 
provoke retaliatory crimes and community unrest, and they 
inflict deep, lasting, and distinct injuries--some of which 
never heal--on victims and their family members. In light of 
these concerns, the United States Sentencing Commission has 
established a sentencing guideline that provides for an 
enhanced sentence for a federal defendant whose crime was 
motivated by hate. See USSG Sec. 3A1.1.
    While states must retain their traditional, primary role in 
criminal law enforcement, the federal government has an 
obligation to play a significant role in the nation's efforts 
against such crimes. The melting pot of America has proved to 
be the most successful multi-ethnic, multi-racial, and multi-
faith country in all of recorded history. Unlike other 
countries riven by racial, ethnic, or religious conflict, 
Americans of all stripes have come to respect the diversity 
that makes our nation so vibrant. Hate crimes, because they 
corrode the bonds that bind us as a nation, must be a national 
priority.
    Properly circumscribed, Congress' role in fighting hate 
crimes should not be a cause for concern. During and just 
preceding this past generation, Congress has been the engine of 
progress in securing America's civil rights achievements and in 
driving us as a society increasingly closer to the goal of 
equal rights for all under the law. Congress protected 
Americans from employment discrimination on the basis of race, 
sex, color, religion, and national origin with the passage of 
the Civil Rights Act of 1964; Congress protected Americans from 
gender-based discrimination in rates of pay for equal work with 
the Equal Pay Act of 1963; and from age discrimination with the 
passage of the Age Discrimination in Employment Act of 1967; 
and in 1990, Congress extended protections to the disabled with 
the passage of the Americans With Disabilities Act. Most 
recently, in 1996, Congress passed the Church Arson Protection 
Act which, among other things, criminalized the destruction of 
any church, synagogue, mosque, or other place of religious 
worship because of the race, color, or ethnic characteristics 
of an individual associated with that property.
    Yet, despite our best efforts, discrimination against 
people's own security--that most fundamental right to be free 
from physical harm--continues to persist in many forms in this 
country, but most sadly in the rudimentary and malicious form 
of violence against individuals because of their identities.
    Thus, the battle against hate crimes is and must be 
America's fight. And despite the often contentious partisan 
rhetoric surrounding the issue of federal hate crimes 
legislation, there exists widespread agreement on these 
fundamental points: hate crimes are insidiously harmful, they 
should be vigorously prosecuted, and the federal government has 
a role to play in reducing the incidence of these crimes in our 
nation. The dispute, then, centers not on whether Congress 
should act in this area, but rather on what should be done at 
that national level.
    Although well intentioned, S. 625, the Local Law 
Enforcement Act of 2001, is the wrong approach. Without 
sufficient justification, this legislation strains the 
constitutional limitations imposed on Congress and supplants 
the traditional powers of state and local law enforcement. Even 
more troubling, the legislation would in many cases provide 
less protection than existing laws to victims of violent hate 
crimes. The Hatch substitute, on the other hand, would bring 
progress in our fight against hate crimes without creating any 
of these problems.

         ii. failings of the local law enforcement act of 2001

    The Local Law Enforcement Act of 2001 would raise five 
substantive policy concerns if enacted in its present form. The 
majority of these problems proceed from the flawed and 
unverified premise that underlies the legislation: states are 
unable or unwilling to prosecute hate crimes. From that premise 
the legislation proceeds to enact a new layer of unnecessary, 
far-reaching federal criminal legislation.
A. Usurping the Traditional Police Power of the States
    S. 625 would wreak havoc on one of the foundations of our 
constitutional structure, namely, the first principles of 
federalism that for more than two centuries have vested states 
with primary responsibility for prosecuting crimes committed 
within their boundaries. This legislation continues the 
accelerating trend toward federalizing essentially local 
criminal conduct--a trend that has provoked criticism from 
distinguished legal commentators and organizations, including 
the ABA and the Chief Justice of the United States.\60\ 
According to these critics, Congress should only federalize 
local criminal conduct when the need is apparent and 
demonstrated.\61\
---------------------------------------------------------------------------
    \60\ E.g., ``The Federalization of Criminal Law,'' Task Force on 
the Federalization of Criminal Law, American Bar Association, Criminal 
Justice Section (1998); William H. Rehnquist, Address to the American 
Law Institute, Remarks and Addresses at the 75th Annual ALI Meeting, 
May 1998, at 15-19 (1988), also excerpted in Chief Justice Raises 
Concerns on Federalism, 30 The Third Branch, June 1998, at 1.
    \61\ The Federalization of Criminal Law,'' at 12.
---------------------------------------------------------------------------
    Here, though the need is neither apparent nor 
demonstrated,\62\ S. 625 would make every violent crime 
motivated by animus toward certain classes a federal matter. 
Forty-five states and the District of Columbia already have 
enacted hate crimes laws, and by any measure they are 
aggressively and effectively prosecuting these cases. We 
certainly are open to being persuaded that the states are 
failing to prosecute these crimes. But neither the majority's 
views nor the record developed in support of this legislation 
come close to making such a case.\63\ In fact, the record would 
suggest quite another conclusion. The successful local 
prosecutions of those who perpetrated the reprehensible murders 
of Matthew Shephard in Laramie, WY, and James Byrd, Jr., in 
Jasper, TX should stand as a testament to the fact that 
wholesale federal intervention is not warranted.\64\
---------------------------------------------------------------------------
    \62\ According to the most recent statistics available from the 
Federal Bureau of Investigation, there were 19 reported ``hate-crimes'' 
murders in the United States in 2000. While this number is 19 too many, 
it is far smaller than the 15,517 murders committed that year. 
Similarly, there were 17 reported ``hate-crimes'' murders in 1999, 
compared to the 15,533 murders committed that year.
    \63\ The committee report cites 17 examples of ``violent hate 
crimes not covered by existing [federal] law.'' Committee Report at 26-
31. As these examples were inserted into the report long after the May 
1999 hearings on this bill, it is difficult to assess their real value. 
It is crystal clear, however, that each of the 17 examples could be 
prosecuted under existing state laws, for a violent assault is a crime 
in every local jurisdiction throughout the United States. Even the most 
cursory examination of these 17 examples, moreover, makes clear that 
states are not forsaking their obligation to prosecute these serious 
offenses. It is most telling that the report fails even to note where 
the state and local prosecutions have been successful. For example, the 
two perpetrators of the December 1993, Humboldt, NE example were 
convicted and one was sentenced to death, while the other received life 
in prison; the perpetrator of the February 15, 1999, Yosemite National 
Park, CA example is currently on trial in which state prosecutors are 
seeking the death penalty; and local prosecutors charged two suspects 
with murder in the June 2000, New York, NY example. Some of the other 
examples relied on by the majority are of dubious value. Where diligent 
local investigations have uncovered no suspects (see, e.g., January 
2000, Boston, MA; June 9, 2001, Washington, D.C.; August 26, 2001, 
Leawood, KS; and September 2001, San Antonio, TX examples), there is no 
reason to believe that S. 625 would lead to a different result. And the 
November 2, 2001, Cedaredge, CO example, cited in the report as a death 
some believed ``might have been a hate crime'' (Committee Report at 
31), has been deemed by every independent law enforcement officer who 
reviewed the facts--from the Coroner to the District Attorney to the 
Chief of Police--as a suicide.
    \64\ Oddly, the committee report cites these successful local 
prosecutions to evidence the short-comings in current law. See 
Committee Report at 7. This is so, the report concludes, because local 
prosecutions can be stymied by a lack of resources. The answer to this 
concern is appropriate federal funding--something we have never opposed 
and, indeed, something we proposed to do in the Hatch substitute 
amendment. The possible lack of local resources in some small number of 
cases surely does not justify the far-flung jurisdictional power grab 
in S. 625. Nor can one seriously contend otherwise. The committee 
report itself favorably refers to the federal role in the prosecution 
of the killers of James Byrd, Jr.--a feat that was accomplished under 
current law. See Committee Report at 4.
---------------------------------------------------------------------------
    Recognizing that the case for S. 625 cannot be made on the 
basis of states' failure to vigorously bring these types of 
prosecutions, the supporters of this bill conflate that alleged 
concern with the difficulties presented by the existing federal 
statute's requirement concerning ``federally protected 
activities.'' \65\ See 18 U.S.C. Sec. 245(b)(2); Committee 
Report at 5-6. But tellingly, the proposed legislation goes far 
beyond merely fixing a troublesome jurisdictional requirement. 
It instead proposes a wholesale jurisdictional grab by the 
federal government of enforcement powers traditionally and 
constitutionally reserved to the states.
---------------------------------------------------------------------------
    \65\ Of course, there is nothing sinister about the ``federally 
protected activities'' requirement in 18 U.S.C. Sec. 245(b)(2), which 
was passed in 1968. Rather, the drafters of that legislation were 
committed to crafting legislation that carefully balanced federalism 
concerns with the need to protect the newly-won civil rights of our 
nation's racial minorities. Furthermore, as any fair-minded student of 
American history would attest, the need for the 1968 legislation was 
infinitely more apparent than any proposed justification for S. 625. 
All sides to this debate would agree, one hopes, that America has come 
a long way since 1968.
---------------------------------------------------------------------------
    Thus, rather than addressing a pressing need, this 
legislation will be perceived by many as the federal 
government's latest effort to enact criminal legislation driven 
not by necessity, but political popularity. Federal involvement 
is required where we find both an identifiable problem of 
national concern and a structural incapacity of state and local 
government to deal with that problem.\66\ At the same time, we 
are obligated to and should avoid ``feel-good, do-something'' 
federal criminal legislation \67\ that overburdens the federal 
criminal justice system and represents, at best, ``symbolic 
gestures to appease the public rather than actual attempts to 
reduce crime.'' \68\
---------------------------------------------------------------------------
    \66\ See Franklin E. Zimring & Gordon Hawkins, Toward a Principled 
Basis for Federal Criminal Legislation, 543 Annals Am. Acad. Pol. & 
Soc. Sci., 15, 20-21 (1996).
    \67\ See William N. Eskridge, Jr. & Philip P. Frickey, The Supreme 
Court 1993 Term--Foreword: The Law as Equilibrium, 108 Har.L.Rev. 26, 
71 (1994).
    \68\ Nancy E. Marion, A History of Federal Crime Control 
Initiatives 244 (1994).
---------------------------------------------------------------------------
B. Federalizing Rapes and Sexual Assaults
    The majority's inclusion of gender as a protected class in 
the legislation dramatically heightens the federalism concerns 
described above. Including gender threatens to expand federal 
criminal jurisdiction throughout the country over every rape, 
every domestic dispute, and every assault between genders.
    This expansion of jurisdiction, too, is patently 
unnecessary. The record with regard to this legislation is 
deafeningly silent on the need for this massive expansion of 
federal jurisdiction. One cannot seriously contend that states 
have failed to fulfill their traditional role of prosecuting 
such crimes. Indeed, the majority fails to identify a single 
case where state or local authorities have refused to bring 
appropriate charges. Simply stated, there is no record 
established that would support the federalization of every case 
motivated in part by gender. Notably, the Congress, despite 
developing a record far more substantial than that found here, 
has twice enacted legislation (in 1994 and 2000) to combat 
violence against women that, though far-reaching, does not 
reach the breadth of cases that S. 625 would subject to federal 
jurisdiction.\69\
---------------------------------------------------------------------------
    \69\ See 1994 Violence Against Women Act, Pub. L. No. 103-322; 
Violence Against Women Act of 2000, Pub. L. No. 106-386.
---------------------------------------------------------------------------
C. Weakened Punishment for Victims of Hate Crimes
    The third significant problem with this legislation is that 
it actually threatens to weaken the punishment available for 
the perpetrators of violent hate crimes. In the prosecutions of 
the killers of James Byrd, Matthew Shepard, and Billy Jack 
Gaither, local prosecutors and law enforcement officials were 
able to consider seeking the death penalty. In the cases of 
James Byrd and Billy Jack Gaither, the death penalty was 
successfully pursued; in the case of Matthew Shepard, the 
possibility of the death penalty led to an early plea bargain 
that saved scarce local resources and resulted in life 
sentences for both defendants. Right now, in a case in rural 
northern California, state prosecutors are pursuing capital 
charges against two brothers charged with murdering a gay 
couple.\70\
---------------------------------------------------------------------------
    \70\ See ``Williams Trial is Delayed Again,'' The Record 
Searchlight, May 2, 2000.
---------------------------------------------------------------------------
    S. 625, while federalizing hate crimes, authorizes nothing 
more than life in prison for those who murder out of bigotry, 
prejudice, or hatred. If the defendants in the murders of James 
Byrd and Billy Jack Gaither had been prosecuted under S. 625, 
they would not have received the death sentences that they 
eventually received under state law. Had the case pending in 
northern California been brought under this legislation, the 
death penalty would not be available. S. 625 therefore would 
provide a decided benefit to those who would commit these 
heinous crimes. Not only would it undermine existing state 
laws, but S. 625 also would substantially weaken their 
protections. Consequently, this legislation would be less 
likely to deter future hate crimes.
D. Practical Difficulties for State and Local Authorities
    S. 625 will also create significant practical difficulties 
for state and local prosecutors. Aside from having to determine 
whether a crime qualifies as a hate crime (which can often be a 
difficult task) prosecutors will now also have to determine 
whether the case should be brought in state or federal court. 
One wonders whether the supporters of this bill contemplate 
that local authorities, upon learning that a suspect once made 
racist statements, will have to halt their investigation and 
locate an Assistant Attorney General here in Washington, D.C. 
for further instructions. What is more, any particular crime 
could, upon discovery of additional evidence, become a 
potential hate crime at any stage in the investigation or 
prosecution of a case. Besides being cumbersome, the structure 
enacted by S. 625 does not facilitate an efficient division of 
labor between federal, state, and local law enforcement 
entities.
    Moreover, the legislation will have a chilling effect on 
plea bargaining, a key component of our criminal justice 
system. Any competent criminal defense attorney will demand 
binding assurance from the federal government that it will 
decline prosecution before entering into a plea agreement with 
state authorities on hate crime charges. Such global 
dispositions are difficult to negotiate and frequently 
undermine the government's ability to prosecute later-
discovered crimes committed by the defendant. In addition, the 
federal government will have effective veto power over state 
plea and sentencing agreements in virtually all hate crime 
cases.
    S. 625's certification requirement clearly invites 
mischief. It is not difficult to imagine situations in which 
the Justice Department decides that a state ``does not intend 
to exercise jurisdiction'' despite the state's assertions to 
the contrary. The Justice Department may decide, for example, 
that the state's investigation is taking too long and the state 
is not sufficiently serious about exercising jurisdiction. The 
bill does not provide that the federal government will defer to 
a state's assertion of jurisdiction, only that it will consult 
with the state. Equally troubling, permitting the federal 
government to prosecute a case when it concludes that the state 
sentence leaves ``demonstratively unvindicated the Federal 
interest in eradicating bias-motivated violence'' will allow 
for potentially unfair, successive prosecutions of defendants. 
It also will subject the states to federal second guessing on 
every hate crime investigation and prosecution.\71\ The 
potential for federal intervention at any stage of the case 
will create disincentives to moving forward at the local level 
and thereby jeopardize the effective investigation and 
prosecution of these cases.
---------------------------------------------------------------------------
    \71\ The concern about federal second guessing is not idle 
speculation. As the committee report clearly states, supporters of S. 
625 envision that federal authorities will step in whenever state and 
local prosecutors fail to bring ``appropriate state charges.'' 
Committee Report at 4.
---------------------------------------------------------------------------
E. Concerns Regarding the Constitutionality of the Legislation
    Finally, recent Supreme Court precedent may raise 
significant questions concerning the constitutionality of S. 
625. Such questions may arise, for example, regarding the 
inclusion of gender as a protected class under the bill, since 
there is no record and not even any substantial findings to 
support the inclusion of gender. While the provisions of S. 625 
may ultimately pass constitutional muster, these questions will 
surely generate substantial litigation that could be avoided by 
enacting the Hatch substitute, which, instead of rushing 
headlong to federalize hate crimes, establishes a reliable 
study to determine the appropriate scope of federal hate crimes 
legislation and provides assistance to state and local law 
enforcement agencies in the prosecution of hate crimes.

             iii. a measured approach: the hatch substitute

    The substitute amendment offered in committee by Senator 
Hatch would advance our nation's fight against hate crimes 
without creating the problems described above. This alternative 
provided for a cross-sectional study to help determine the form 
that any additional federal hate crimes legislation should 
take. The study would have collected and analyzed statistics on 
hate crimes both in states that currently have hate crimes laws 
and in those states that currently do not have such laws. 
Specifically, the study would have examined the number of hate 
crime offenses reported and investigated; the percentage of 
hate crimes prosecuted and the conviction rate; a comparison of 
the length of sentence imposed on those convicted of hate 
crimes; and references to and descriptions of the laws under 
which the offenders were punished. Based on these statistics, 
the Comptroller General would have submitted a report to 
Congress detailing the extent of hate crime activity and the 
success of state and local officials in prosecuting hate 
crimes. The study would have identified trends in the 
commission of hate crimes by geographic region, by the type of 
crime committed, and by prosecution and conviction rate. Thus, 
the study would have provided Congress with a more 
comprehensive factual basis for determining whether, and to 
what extent, the federalization of hate crimes is an 
appropriate response to the states' efforts, instead of largely 
assuming that state and local governments are incapable of 
addressing hate crimes.
    The other important component of the Hatch alternative 
would have provided for federal assistance to states and 
localities that need help to fight hate crime. Specifically, 
the alternative would have allowed the Attorney General, at the 
request of a state or locality, to provide technical, forensic, 
prosecturial, and any other assistance in the investigation and 
prosecution of hate crimes. It also would have allowed the 
Attorney General to provide grants of up to $100,000 per case 
to assist states and localities in investigating and 
prosecuting hate crimes. The majority report cites the 
difficult intent element of the existing federal hate crimes 
statute, 18 U.S.C. Sec. 245(b)(2), as the primary obstacle to 
the provision of federal assistance to state and local law 
enforcement and, concurrently, the need for an expansive 
federal hate crimes statute. Committee Report at 4-5. The Hatch 
alternative would have achieved the goal of enabling federal 
assistance for the prosecution of hate crimes by state and 
local law enforcement without unjustifiably federalizing the 
prosecution of hate crimes.

                             iv. conclusion

    There exists widespread agreement that the federal 
government must play a role in our nation's efforts against 
hate crimes. But the role we define must respect the 
Constitution and the structure of our government, a structure 
that assigns to the states the primary role in criminal law 
enforcement. Rather than take a precipitous step that would 
potentially make every criminal offense motivated by a hatred 
of someone's immutable traits a federal offense, we should 
equip states and localities with the resources necessary to 
undertake these criminal investigations and prosecutions on 
their own. At the same time, we should undertake a 
comprehensive analysis of the raw data that has been collected 
pursuant to the 1990 Hate Crime Statistics Act, including a 
comparison of the records of different jurisdictions--some with 
hate crimes law, others without--to determine whether there is, 
in fact, a problem in certain states' prosecution of those 
criminal acts constituting hate crimes. The Hatch substitute is 
a measured legislative response that would accomplish both of 
these goals.
    Perhaps the study authorized by the Hatch substitute would 
demonstrate the need for legislation such as the Local Law 
Enforcement Act of 2001. To date, however, the case has not 
been made.
                                                    Orrin G. Hatch.

                      XII. Changes in Existing Law

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 625, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in bold brackets, new matter 
is printed in italic, and existing law in which no change is 
proposed is shown in roman):

                         UNITED STATES CODE

           *       *       *       *       *       *       *


                TITLE 18--CRIMES AND CRIMINAL PROCEDURE




Part                                                            Section

I. CRIMES..................................................           1


                                                             

           *       *       *       *       *       *       *
                             PART I--CRIMES




Chapter                                                         Section

1. General provisions......................................           1


                                                             

           *       *       *       *       *       *       *
                    CHAPTER 13--CIVIL RIGHTS

    Sec.

    241. Conspiracy against rights.

           *       *       *       *       *       *       *

    248. Freedom of access to clinic entrances.
    249. Hate crime acts.

Sec. 241. Conspiracy against rights

    If two or more persons * * *

           *       *       *       *       *       *       *


Sec. 248. Freedom of access to clinic entrances

    (a) Prohibited activities.--Whoever--

           *       *       *       *       *       *       *

    (e) Definitions.--As used in this section:
          (1) Facility.--The term ``facility'' includes a 
        hospital, clinic, physician's office, or other facility 
        that provides reproductive health services, and 
        includes the building or structure in which the 
        facility is located.

           *       *       *       *       *       *       *

          (6) State.--The term ``State'' includes a State of 
        the United States, the District of Columbia, and any 
        commonwealth, territory, or possession of the United 
        States.

Sec. 249. Hate crime acts

    (a) In General.--
          (1) Offenses involving actual or perceived race, 
        color, religion, or national origin.--Whoever, whether 
        or not acting under color of law, willfully causes 
        bodily injury to any person or, through the use of 
        fire, a firearm, or an explosive or incendiary device, 
        attempts to cause bodily injury to any person, because 
        of the actual or perceived race, color, religion, or 
        national origin of any person--
                  (A) shall be imprisoned not more than 10 
                years, fined in accordance with this title, or 
                both; and
                  (B) shall be imprisoned for any term of years 
                or for life, fined in accordance with this 
                title, or both, if--
                          (i) death results from the offense; 
                        or
                          (ii) the offense includes kidnaping 
                        or an attempt to kidnap, aggravated 
                        sexual abuse or an attempt to commit 
                        aggravated sexual abuse, or an attempt 
                        to kill.
          (2) Offenses involving actual or perceived religion, 
        national origin, gender, sexual orientation, or 
        disability.--
                  (A) In general.--Whoever, whether or not 
                acting under color of law, in any circumstance 
                described in subparagraph (B), willfully causes 
                bodily injury to any person or, through the use 
                of fire, a firearm, or an explosive or 
                incendiary device, attempts to cause bodily 
                injury to any person, because of the actual or 
                perceived religion, national origin, gender, 
                sexual orientation, or disability of any 
                person--
                          (i) shall be imprisoned not more than 
                        10 years, fined in accordance with this 
                        title, or both; and
                          (ii) shall be imprisoned for any term 
                        of years or for life, fined in 
                        accordance with this title, or both, 
                        if--
                                  (I) death results from the 
                                offense; or
                                  (II) the offense includes 
                                kidnaping or an attempt to 
                                kidnap, aggravated sexual abuse 
                                or an attempt to commit 
                                aggravated sexual abuse, or an 
                                attempt to kill.
                  (B) Circumstances described.--For purposes of 
                subparagraph (A), the circumstances described 
                in this subparagraph are that--
                          (i) the conduct described in 
                        subparagraph (A) occurs during the 
                        course of, or as the result of, the 
                        travel of the defendant or the victim--
                                  (I) across a State line or 
                                national border; or
                                  (II) using a channel, 
                                facility, or instrumentality of 
                                interstate or foreign commerce;
                          (ii) the defendant uses a channel, 
                        facility, or instrumentality of 
                        interstate or foreign commerce in 
                        connection with the conduct described 
                        in subparagraph (A);
                          (iii) in connection with the conduct 
                        described in subparagraph (A), the 
                        defendant employs a firearm, explosive 
                        or incendiary device, or other weapon 
                        that has traveled in interstate or 
                        foreign commerce; or
                          (iv) the conduct described in 
                        subparagraph (A)--
                                  (I) interferes with 
                                commercial or other economic 
                                activity in which the victim is 
                                engaged at the time of the 
                                conduct; or
                                  (II) otherwise affects 
                                interstate or foreign commerce.
    (b) Certification Requirement.--No prosecution of any 
offense described in this subsection may be undertaken by the 
United States, except under the certification in writing of the 
Attorney General, the Deputy Attorney General, the Associate 
Attorney General, or any Assistant Attorney General specially 
designated by the Attorney General that--
          (1) he or she has reasonable cause to believe that 
        the actual or perceived race, color, religion, national 
        origin, gender, sexual orientation, or disability of 
        any person was a motivating factor underlying the 
        alleged conduct of the defendant; and
          (2) he or his designee or she or her designee has 
        consulted with State of local law enforcement officials 
        regarding the prosecution and determined that--
                  (A) the State does not have jurisdiction or 
                does not intend to exercise jurisdiction;
                  (B) the State has requested that the Federal 
                Government assume jurisdiction;
                  (C) the State does not object to the Federal 
                Government assuming jurisdiction; or
                  (D) the verdict or sentence obtained pursuant 
                to State charges left demonstratively 
                unvindicated the Federal interest in 
                eradicating bias-motivated violence.
    (c) Definitions.--In this section--
          (1) the term ``explosive or incendiary device'' has 
        the meaning given the term in section 232 of this 
        title; and
          (2) the term ``firearm'' has the meaning given the 
        term in section 921(a) of this title.

           *       *       *       *       *       *       *


               TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE




Part                                                            Section

I. ORGANIZATION OF COURTS..................................           1


                                                             

           *       *       *       *       *       *       *
                 PART I--ORGANIZATION OF COURTS




Chapter                                                         Section

1. Supreme Court...........................................           1


                                                             

           *       *       *       *       *       *       *
                 PART II--DEPARTMENT OF JUSTICE




31. The Attorney General...................................         501


                                                             

           *       *       *       *       *       *       *
              CHAPTER 33--FEDERAL BUREAU OF INVESTIGATION

Sec.

531. Federal Bureau of Investigation.

           *       *       *       *       *       *       *


Sec. 534. Acquisition, preservation, and exchange of identification 
                    records and information; appointment of officials

    (a) The Attorney General shall--

           *       *       *       *       *       *       *


                    HISTORICAL AND STATUTORY NOTES

           *       *       *       *       *       *       *


Hate Crime Statistics

    Pub.L. 101-275, Apr. 23, 1990, 104 Stat. 140, provided:

    ``That (a) this Act [this note] may be cited as the `Hate 
Crime Statistics Act'.

    ``(b)(1) Under the authority of section 534 of title 28, 
United States Code [this section], the Attorney General shall 
acquire data, for each calendar year, about crimes that 
manifest evidence of prejudice based on race, gender, religion, 
disability, sexual orientation, or ethnicity, including where 
appropriate the crimes of murder, non-negligent manslaughter; 
forcible rape; aggravated assault, simple assault, 
intimidation; arson; and destruction, damage or vandalism of 
property.

           *       *       *       *       *       *       *


                                  
