```

[Senate Hearing 106-517]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-517
 
 COMBATING HATE CRIMES: PROMOTING A RESPONSIVE AND RESPONSIBLE ROLE FOR 
                         THE FEDERAL GOVERNMENT

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

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             FIRST SESSION

                                   on

  EXAMINING HOW TO PROMOTE A RESPONSIVE AND RESPONSIBLE ROLE FOR THE 
     FEDERAL GOVERNMENT ON COMBATING HATE CRIMES, FOCUSING ON THE 
RELATIONSHIP BETWEEN THE FEDERAL GOVERNMENT AND THE STATES IN COMBATING 
HATE CRIME, ANALYSIS OF STATES' PROSECUTION OF HATE CRIMES, DEVELOPMENT 
 OF A HATE CRIME LEGISLATION MODEL, AND EXISTING FEDERAL HATE CRIME LAW

                               __________

                              MAY 11, 1999

                               __________

                          Serial No. J-106-25

                               __________

         Printed for the use of the Committee on the Judiciary

                    U.S. GOVERNMENT PRINTING OFFICE
64-861 CC                   WASHINGTON : 2000

                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                  (ii)

                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........     1
Kennedy, Hon. Edward M., U.S. Senator from the State of 
  Massachusetts..................................................     5
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...    30

                    CHRONOLOGICAL LIST OF WITNESSES

Statement of Eric H. Holder, Jr., Deputy Attorney General, U.S. 
  Department of Justice, Washington, DC..........................     7
Panel consisting of Judy Shepard, Casper, WY; Jeanine Ferris 
  Pirro, Westchester County district attorney, White Plains, NY; 
  Kenneth T. Brown, chief deputy and prosecuting attorney for 
  Albany County, Laramie, WY; Robert H. Knight, director of 
  cultural studies, Family Research Council, Washington, DC; Burt 
  Neuborne, John Norton Pomeroy professor of law, New York 
  University School of Law, New York, NY; and Akhil Reed Amar, 
  professor of law, Yale Law School, New Haven, CT...............    27

               ALPHABETICAL LIST AND MATERIALS SUBMITTED

Amar, Akhil Reed:
    Testimony....................................................    47
    Prepared statement...........................................    49
Brown, Kenneth T.: Testimony.....................................    34
Hatch, Hon. Orrin G.:
    Prepared statements of:
        Hon. Ron Wyden, U.S. Senator from the State of Oregon....     4
        Hon. Gordon Smith, U.S. Senator from the State of Oregon.     4
Holder, Eric H., Jr.:
    Testimony....................................................     7
    Prepared statement...........................................    18
Knight, Robert H.:
    Testimony....................................................    35
    Prepared statement...........................................    38
Neuborne, Burt:
    Testimony....................................................    41
    Prepared statement...........................................    43
Pirro, Jeanine Ferris: Testimony.................................    32
Shepard, Judy: Testimony.........................................    27

                                APPENDIX
                 Additional Submissions for the Record

Prepared statements of:
    American Civil Liberties Union...............................    55
    Center for Women Policy Studies..............................    58
    Mrs. Catrina Durr's Law Students, Thornton Township High 
      School, Harvey, IL.........................................    59
    Mrs. Linda Franklin's Third Period Students, Thornton 
      Township High School, Harvey, IL...........................    60
    Timothy Lynch................................................    60
    National Gay and Lesbian Task Force..........................    63
    NOW Legal Defense and Education Fund.........................    64
    Riki Anne Witchins...........................................    73

                                

Letters from:
    George Deukmejian, vice chairman, Criminal Justice Legal 
      Foundation, to Senator Hatch, dated May 7, 1999............    74
    Ronald Seigel, first vice chairperson, Michigan Citizens With 
      Disabilities Caucus, to Senator Hatch, dated May 7, 1999...    75
    Alice Ray, president and CEO, Ripple Effects, to Senators 
      Hatch and Leahy, dated May 7, 1999.........................    79
    Gordon J. Campbell, Victims Services, dated May 11, 1999.....    80

COMBATING HATE CRIMES: PROMOTING A RESPONSIVE AND RESPONSIBLE ROLE FOR 
                         THE FEDERAL GOVERNMENT

                              ----------                              

                         TUESDAY, MAY 11, 1999

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:19 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch (chairman of the committee) presiding.
    Also present: Senators Specter and Kennedy.

 OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM 
                       THE STATE OF UTAH

    The Chairman. Good morning, and welcome to today's hearing. 
I apologize for being late, but it is one of those times where 
one of my major bills came up on the floor and I had to start 
off the debate, and so I apologize for being so late.
    It is good to have you here, Mr. Holder, before the 
committee.
    Mr. Holder. Good to see you Mr. Chairman.
    The Chairman. Welcome to today's hearing, entitled 
``Combating Hate Crimes: Promoting a Responsive and Responsible 
Role for the Federal Government.'' We are very pleased to have 
Deputy Attorney General Eric Holder with us today, as well as a 
panel of other very impressive witnesses whom I will introduce 
after we hear from Mr. Holder.
    But I want to give a special recognition and thanks to Ms. 
Judy Shepard, to whom I am especially grateful for appearing 
today. As most of you know, Ms. Shepard suffered a tragedy no 
mother should have to endure--the loss of her son to an act of 
brutal violence. It was a small effort for me to support a 
resolution that passed the Senate last year condemning 
Matthew's murder in the strongest terms, and pledging action to 
bring an end to such crimes.
    But your appearance today, Ms. Shepard, reflects a great 
effort, one that will salvage from the tragedy of Matthew's 
death a nationwide recognition and condemnation of the brutal 
manifestation of hate that prematurely ended his life and 
devastated your family.
    Today's hearing will involve facts and issues that are at 
once staggering and difficult. Some of our witnesses will 
confront us with facts that expose an ugly, bigoted and violent 
underside of some in our country, facts that rivet our 
attention and cannot help but move us to embrace virtually any 
measure appearing to stem this bigotry.
    But the hearing will also bring us face to face with the 
foundations of our constitutional structure, namely the first 
principles of federalism that for more than two centuries have 
vested States with the primary responsibility for prosecuting 
crimes committed within their boundaries.
    Today's hearing brings us to this intersection between our 
well-intentioned desire to investigate, prosecute, and 
hopefully end these vicious crimes, and our unequivocal duty to 
respect the constitutional boundaries governing any legislative 
action we take. It is my expectation that at today's hearing we 
will also bring a commitment to do what Congress can do to 
redress these crimes.
    Indeed, the aim of this hearing is not merely to focus 
attention on the scourge of hate crime, but to consider those 
efforts that can most effectively be taken to stop hate crimes. 
Though we will hear a broad array of perspectives from our 
witnesses today, there is one point about which I think we can 
all agree, and that is that the actions constituting these hate 
crimes are wrong in all respects.
    Let me state unequivocally that as much as we condemn all 
crime, hate crime can be more sinister than nonhate crime. A 
crime committed not just to harm an individual but out of the 
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.
    This is in keeping with the longstanding principle of 
criminal justice as recognized recently by the U.S. 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.
    Moreover, hate crimes are more likely to provoke 
retaliation. They inflict deep, lasting and distinct injuries, 
some of which will never heal, on victims and their family 
members. They incite community unrest, and ultimately they are 
downright un-American. The melting pot of America is, 
worldwide, the most successful multiethnic, multiracial and 
multifaith country in all recorded history. This is something 
to ponder as we consider the atrocities routinely sanctioned in 
other countries like Serbia today, committed against persons 
entirely on the basis of their racial, ethnic or religious 
identity.
    So while all of us would agree on the objective of dealing 
with the problem of hate crimes, our exchange today and 
throughout this 106th Congress must be largely about the 
appropriate means to best accomplish that objective. And so it 
is that the title of today's hearing speaks of, ``promoting a 
responsive and responsible role,'' for the Federal Government 
in combating hate crime.
    In the face of some of the recent hate crimes that have 
riveted public attention and have unfortunately made the name 
James Byrd synonymous with Jasper, TX, and the name Matthew 
Shepard synonymous with Laramie, WY, I am committed in my view 
that the Senate must act and speak against hate crimes.
    Indeed, I am on record with my view that the Federal 
Government can play a valuable role in responding to hate 
crimes, having sponsored the Hate Crimes Statistics Act of 1990 
with my friend, Senator Kennedy. But any Federal response, to 
be a meaningful one, must abide by the constitutional 
limitations imposed on Congress and be cognizant of the 
limitations on Congress' enumerated powers that are routinely 
enforced by the courts. This is more true today than it would 
have been even a mere decade ago, given the significant revival 
by the U.S. Supreme Court of the federalism doctrine in a 
string of decisions beginning in 1992.
    For the primary benefit of the scholars we have brought 
here today, let me emphasize that I am particularly concerned 
with the Court's restrictions on Congress' powers to legislate 
under section 5 of the 14th amendment and under the Commerce 
Clause: City of Boerne, invalidating the Religious Freedom 
Restoration Act--again, a bill that the two of us have done--
under the 14th amendment; Lopez, invalidating the Gun-Free 
School Zones Act under the Commerce Clause; and Brzonkala, a 
fourth circuit decision invalidating one section of the 
Violence Against Women Act on both grounds.
    I have already given a great deal of personal thought to 
this matter in an effort to arrive at a Federal response to 
hate crimes that is not only as effective as possible, but that 
carefully navigate the rocky shoals of these court decisions.
    I am going to share with you the four features of an 
approach that I believe would be not only an effective one, but 
one that would avoid altogether the constitutional risks that 
attach to other possible Federal responses that have been 
raised.
    First, I would propose creating a meaningful partnership 
between the Federal Government and the States in combating hate 
crime by establishing within the Justice Department a fund to 
assist State and local authorities in investigating and 
prosecuting such crimes. Much of the cited justification given 
by those who advocate broad Federal jurisdiction over hate 
crimes is a lack of adequate resources at the State and local 
levels. Perhaps, then, before we take the step of making every 
criminal offense motivated by hatred a Federal offense, we 
ought to equip the States and localities with the resources 
necessary so that they can undertake these criminal 
investigations and prosecutions on their own.
    Second, we need to undertake a comprehensive analysis of 
the raw data that has been collected pursuant to the 1990 Hate 
Crimes Statistics Act, including a comparison of the records of 
different jurisdictions, some with hate crime laws, others 
without, to determine whether there is, in fact, a problem in 
certain States' prosecution of those criminal acts constituting 
hate crimes. That is a very important issue to me. Are the 
States doing the job? Will they do the job? Do they have the 
ability to do the job, even if they are willing to?
    Third, my approach would direct an appropriate neutral 
forum to develop a model hate crimes statute that would enable 
States to evaluate their own laws and adopt, in whole or in 
part, the model statute hate crime legislation at the State 
level.
    And, fourth, I would make a long overdue modification of 
our existing Federal hate crime law passed in 1969 to allow for 
the prosecution by Federal authorities of those hate crimes 
that are classically within Federal jurisdiction; that is, hate 
crimes in which State lines have been crossed.
    Since I know that Deputy Attorney General Eric Holder 
believes that States and localities should continue to be 
responsible for prosecuting the overwhelming majority of hate 
crimes and that no legislation is worthwhile if it is 
invalidated as unconstitutional, I shall be interested in 
hearing his thoughts on this approach that I have just 
outlined.
    But, first, let me take note for the record that my 
colleague from Oregon, Senator Ron Wyden, has submitted written 
testimony for this hearing and we will place that in an 
appropriate place in the hearing record.
    [The prepared statement of Senator Wyden follows:]

Prepared Statement of Hon. Ron Wyden, a U.S. Senator From the State of 
                                 Oregon

    I appreciate the opportunity to submit testimony for the 
Committee's hearing on hate crimes prevention, and wish to commend 
Chairman Hatch and the Committee for your advocacy on behalf of civil 
rights. No matter how hard we work in this area, however, there is 
always more to be done. This is especially true for crimes motivated by 
hate.
    Hate crimes are a stain on our national greatness * * * Whether it 
was the brutal death of James Byrd, Jr. last July in Texas, or the way 
Matthew Shepard was left strung up on a fence post in Wyoming.
    The bipartisan Hate Crimes Prevention Act, of which I am a 
principal cosponsor, seeks to deter violent crime motivated by bigotry. 
The bill will close the loopholes in existing Federal hate crimes law 
and remove the straightjacket from local law enforcement so they can 
get Federal assistance when they need it. The purpose is to assure 
prosecution of a hate crime regardless of where it occurred--be it on a 
public sidewalk or in a private parking lot across the street.
    The legislation is carefully aimed at filling in the gaps in the 
low. It will make sure law enforcement has an extensive array of tools 
to prosecute these crimes to the fullest extent.
    The legislation will not generate a tsunami of Federal hate crimes 
cases. Local law enforcement would have to seek Federal involvement, 
and the Attorney General would have to approve that involvement. Since 
1990, Federal indictments under current law have averaged 10 a year, 
and the number of prosecutions has averaged about 6 a year, out of the 
thousands of hate crimes reported each year. The Justice Department 
testified last year that it expects only a ``modest increase in the 
number of cases'' under our bill.
    Our nation has made great strides in civil rights, but there is 
still a long way to go. We need to put bigots on notice that hate 
crimes will not be tolerated in America. That's the message of our 
legislation, and I hope we can send it in a bipartisan way to the 
American people.

    The Chairman. Now, we will turn to my friend and colleague, 
Senator Kennedy, for his opening statement.
    Senator Kennedy. Thank you, Mr. Chairman. Thank you for 
having this hearing. I have a statement here from Senator 
Smith, as well, and ask consent that it be put in the record.
    The Chairman. We will put that in the record as well.
    [The prepared statement of Senator Smith follows:]

Prepared Statement of Hon. Gordon Smith, a U.S. Senator from the State 
                               of Oregon

    Today we meet to address a serious problem in America. This problem 
is not a new one, nor is it unique to the United States. It is the 
incidence of vicious attacks on individuals motivated by a difference 
in race, color, religion, ethnicity, gender, disability or sexual 
orientation. In my role as Chairman of the Foreign Affairs' 
Subcommittee on European Affairs, I speak out against human rights 
violations and hate throughout the world; it would be hypocritical of 
me not to take action within our own border.
    I do not stand here with my colleagues today to single out one 
crime as worse than another. However, there is an undeniable pattern 
here in the United States--certain groups have historically been 
singled out as targets of violent crime. In recent years, the United 
States has made tremendous strides toward equality and civil rights. 
But there remains much to be done. Hate crimes have a deep impact on 
our communities. They enrage, they divide.
    Federal laws are already in place to protect victims of crimes 
based on race, color, religion or national origin; however, federal 
prosecution has been limited to crimes committed within federal 
jurisdiction. This legislation would simply remove these restrictions 
and extend the authority of federal prosecution to crimes based on 
gender, sexual orientation, and disability. We are making current 
federal law not only more enforceable but are ensuring that this law 
includes the groups that are victimized by this hate.
    The Hate Crimes Prevention Act of 1999 does not interfere with 
states' rights; rather, it allows federal prosecutors to assist states 
that do not have the resources to prosecute a case expediently and 
justly. The act will promote cooperation between the federal government 
and state governments by removing current federal hurdles and by 
creating uniformity. Federal prosecutions would be used in only a small 
number of carefully selected cases.
    This act is not about granting special rights. It is about 
recognizing patterns of hate and ensuring that preexisting federal law 
is up-to-date and enforceable.
    In cosponsoring this legislation, I wanted to add my voice to the 
growing chorus in this country that violence motivated by prejudice is 
not acceptable.

 STATEMENT OF HON. EDWARD M. KENNEDY, A U.S. SENATOR FROM THE 
                     STATE OF MASSACHUSETTS

    Senator Kennedy. Thank you for having these hearings. This 
is our second hearing on the issue of hate crimes, and we are 
very hopeful that we will be able to move this legislation 
forward after we hear from really some excellent witnesses here 
today.
    We commend you for calling this hearing on hate crimes. 
These vicious crimes continue to shock the conscience of the 
Nation, and I welcome all the witnesses who are here today. I 
join you in especially commending Judy Shepard, the mother of 
Matthew Shepard, for agreeing to appear before the committee. 
We express our deepest condolences to Ms. Shepard and her 
family, and words cannot begin to describe the pain of losing a 
loved one to such a vicious crime. I mentioned to her before 
the hearing the best way that we can thank her for her presence 
and testimony today is to pass this legislation.
    Clearly, Congress needs to do more to address the issue of 
hate crimes. We need to give the Federal Government more 
effective tools to investigate and prosecute these contemptible 
acts. Last month, it was my privilege to join Senator Specter, 
Senator Leahy, Senator Wyden, Senator Smith and Senator Schumer 
in introducing S. 622, the Hate Crimes Prevention Act of 1999. 
This bill has the support of the Department of Justice, 
constitutional scholars, law enforcement officials, and many 
organizations with a long and distinguished history of 
involvement in combating hate crimes.
    Tragically, the silence of Congress on this basic issue has 
been deafening, and it is unacceptable. We must stop acting 
like we don't care, that somehow this fundamental issue is just 
a State and local problem. It isn't. It is a national problem, 
and for too long Congress has been AWOL.
    Few crimes tear more deeply at the fabric of our society 
than hate crimes. These despicable acts injure the victim, the 
community and the Nation itself. The brutal murders in Texas, 
Wyoming, and most recently in Alabama have shocked us all. But, 
sadly, these three crimes are only the tip of the hate crime 
iceberg. We need to do more, much more, to combat them.
    I am convinced that if Congress today and President Clinton 
signed our bill tomorrow, we would have fewer hate crimes in 
all the days that follow. Current Federal laws are clearly 
inadequate. It is an embarrassment that we haven't already 
acted to close the glaring gaps in present law. For too long, 
the Federal Government has been forced to fight hate crimes 
with one hand tied behind its back.
    Our bill does not undermine the role of the State in 
investigating and prosecuting hate crimes. States will continue 
to take the lead, but the full power of Federal law should also 
be available to investigate, prosecute and punish these crimes.
    The Hate Crimes Prevention Act of 1999 addresses two 
serious deficiencies in the principal Federal hate crime 
statute, 18 U.S.C. 245, which applies to hate crimes committed 
on the basis of race, color, religion, or national origin.
    First, current law requires the Federal law to prove that 
the defendant committed the offense not only 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 enumerated in the 
statute, such as traveling in interstate commerce, serving as a 
juror, or attending a public school or college.
    Second, the statute provides no coverage for hate crimes 
based on a victim's sexual orientation, gender, or disability. 
Together, these limitations prevent the Federal Government from 
working with State and local enforcement agencies in 
investigating and prosecuting many of the most vicious hate 
crimes.
    Our legislation addresses each of these limitations. In 
cases involving race, religion, or ethnic violence, the bill 
prohibits the intentional infliction of bodily injury without 
regard to the victim's participation in one of the federally 
protected activities. In cases involving hate crimes based on a 
victim's sexual orientation, gender, or disability, the bill 
prohibits the intentional infliction of bodily injury whenever 
the act has any connection to interstate commerce. These 
provisions will permit the Federal Government to work in 
partnership with State and local officials in the investigation 
and prosecution of hate crimes.
    The Hate Crimes Prevention Act is a needed response to a 
critical problem facing the Nation. It will make the Federal 
Government a full partner in the battle against hate crimes. In 
recognition of State and local efforts, the Act also provides 
grants to States and local governments to combat hate crimes, 
including programs to train local enforcement officers in 
investigating, prosecuting and preventing hate crimes.
    I urge the Senate to act quickly on this important 
legislation, and I look forward to working with my colleagues 
to bring it to a vote.
    The Chairman. Well, thank you, Senator Kennedy.
    Mr. Holder, again, I apologize for being late. I just 
couldn't be in two places at the same time, and I had to start 
that bill. So we will turn to you and we look forward to your 
testimony.

STATEMENT OF ERIC H. HOLDER, JR., DEPUTY ATTORNEY GENERAL, U.S. 
             DEPARTMENT OF JUSTICE, WASHINGTON, DC

    Mr. Holder. Thank you very much, Mr. Chairman. Mr. 
Chairman, Senator Kennedy, other members of the committee, 
thank you for the opportunity to testify today on the important 
and troubling issue of hate crimes.
    The administration very much appreciates your decision to 
hold this hearing. President Clinton and the Attorney General 
have remained deeply committed to preventing and to prosecuting 
hate crimes since the 1997 White House Conference on Hate 
Crimes. We continue to dedicate significant time and resources 
to this issue.
    The battle against hate crimes has always been bipartisan, 
and this committee has always been in the forefront of that 
battle. In 1990 and in 1994, the committee strongly supported 
the enactment of the Hate Crimes Statistics Act and the Hate 
Crimes Sentencing Enhancement Act. In 1996, the committee 
responded in a time of great national need by quickly endorsing 
the Church Arson Prevention Act.
    I am hopeful that you will respond once again to the call 
for a stronger Federal stand against hate crimes, and that you 
will join law enforcement officials and community leaders from 
across the country in support of S. 622, the Hate Crimes 
Prevention Act of 1999. The bill enjoys bipartisan support in 
both the House and in the Senate. If enacted, this legislation 
will continue the tradition of forceful congressional action to 
eradicate hate crimes.
    Unfortunately, recent events have only reemphasized the 
devastation that hate crimes can bring to a community. We as a 
Nation are stunned and horrified at the hatred and brutality of 
crimes such as the murders of Billy Jack Gaither in Alabama, 
Matthew Shepard in Wyoming, and James Byrd in Texas. These 
incidents and other hate crimes like them are not just a law 
enforcement problem; they are a problem for the entire 
community, for our schools, for our religious institutions, for 
our civic organizations, and for each one of us as individuals 
and as Americans. And when we come together to respond to these 
crimes, we build communities that are stronger, safer, and more 
tolerant.
    There are a number of goals that we must commit ourselves 
to achieving in order to eradicate hate crimes wherever they 
occur. First, we must gain a better understanding of the 
problems. The data that we now have is simply inadequate. In 
1977, the last year for which we have statistics, 11,211 law 
enforcement agencies participated in the data collection 
program and reported 8,049 hate crime incidents. Eight thousand 
forty-nine hate crime incidents represents almost one hate 
crime incident per hour. But we know that even this disturbing 
number significantly underestimates the true level of hate 
crimes. Many victims do not report these crimes. Police 
departments do not always recognize or adequately report hate 
crimes.
    Second, we must learn to teach tolerance and understanding 
in our communities so that we can prevent hate crimes by 
addressing bias before it manifests itself in violent criminal 
activity. We must foster understanding, and should instill in 
our children the respect for each other's differences and the 
ability to resolve conflicts without violence.
    The Department of Education, with the National Association 
of Attorneys General, recently published a guide to addressing 
and stopping hate and bias in our schools. I am also very 
pleased that the Department of Justice will be assisting a new 
partnership announced last month by the President in its 
efforts to develop a program for middle school students on 
tolerance and on diversity.
    Third, we must work together. The centerpiece of the 
administration's hate crimes initiative is the formation of 
local working groups in U.S. attorneys' districts around the 
country. These task forces are hard at work bringing together 
the FBI, the U.S. Attorney's Office, the community relations 
service, local law enforcement, community leaders and educators 
to coordinate our response to hate crimes.
    The groups are assessing the hate crime problem in their 
local areas and developing specific strategies, including 
training, to respond to the problem. Such cooperative efforts 
have recently been reinforced by the July 1998 memorandum of 
understanding between the National District Attorneys 
Association and the Department of Justice.
    Where the Federal Government does have jurisdiction, the 
MOU requires early communication among local, State and Federal 
prosecutors to explore the most effective way to investigate 
these cases and to utilize the best investigative resources or 
combination of resources available.
    Finally, we should never forget that law enforcement has an 
indispensable role to play in eradicating hate crimes. We must 
ensure that potential hate crimes are investigated thoroughly, 
that they are prosecuted swiftly, and that they are punished 
soundly. Current Federal law, however, is simply inadequate.
    The principal Federal hate crimes statute, 18 U.S.C. 245, 
prohibits certain hate crimes committed on the basis of race, 
color, religion, or national origin. The current Federal hate 
crimes law has two serious defects.
    First, in even the most blatant cases of racial, ethnic, or 
religious violence, no Federal jurisdiction exists unless the 
violence was committed because the victim engaged in one of six 
federally protected activities. This unnecessary extra intent 
requirement has led to acquittals in several cases and 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.
    The Hate Crimes Prevention Act of 1999 would amend 18 
U.S.C. 245 so that in cases involving race, religious, or 
ethnic violence, the Federal Government would have jurisdiction 
to prosecute in cases involving the intentional infliction of 
bodily injury without regard to the victim's participation in 
one of six specifically enumerated federally protected 
activities. This is, I believe, an essential fix.
    In my written testimony, I highlight several cases that we 
have lost because of the federally protected activity, and the 
murder of James Byrd is an important example in this regard. 
The collaboration between local, State and Federal 
investigators was essential in that case. The FBI aided a 
relatively small jurisdiction in Texas with forensic and 
laboratory expertise, while the U.S. attorney's office assisted 
in the trial and death penalty phase regarding one of the 
defendants. We can offer much to these localities, but in most 
circumstances only if we have jurisdiction in the first 
instance. The level of collaboration in Jasper was possible 
only because we had a colorable claim of Federal jurisdiction 
in that matter.
    The second jurisdictional limitation of section 245 is that 
it provides no coverage whatsoever for violent hate crimes 
committed because of bias based on the victim's sexual 
orientation, gender, or disability. Violent hate crimes 
committed because of the victim's sexual orientation, 
disability or gender pose a serious problem for our Nation.
    From statistics gathered by the Federal Government and by 
private organizations as well, we know that a significant 
number of hate crimes based on the sexual orientation of the 
victim are committed every year in this country. 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 an independent basis for Federal 
jurisdiction.
    We also know that a significant number of women are exposed 
to brutality and even death because of their gender. And 
Congress, through the enactment of the Violence Against Women 
Act in 1994, has recognized that some violent assaults 
committed against women are bias crimes rather than mere random 
attacks.
    Finally, Congress has shown a sustained commitment over the 
past decade to the protection of persons with disabilities from 
discrimination based on their disabilities. Indeed, 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. The information 
we have available indicates that a significant number of hate 
crimes committed because of the victim's disability are not 
resolved satisfactorily at the State and local level.
    In cases involving violent hate crimes based on the 
victim's sexual orientation, gender, or disability, the Hate 
Crimes Prevention Act of 1999 would prohibit the intentional 
infliction of bodily injury whenever the incident involved or 
affected interstate commerce.
    State and local officials are on the front lines and do an 
enormous job in investigating and prosecuting hate crimes that 
occur in their communities. In fact, most hate crimes are 
investigated and prosecuted at the State level. But we want to 
make sure that Federal jurisdiction to prosecute hate crimes 
covers everything that it should so that the Federal Government 
can share its law enforcement resources, forensic expertise and 
civil rights experience with State and local officials. 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.
    We must continue to examine the root causes of hate crime. 
To move forward as one community, we must work against the 
stereotypes and prejudices that spawn these actions. Our long-
term goal must be to prevent hate crimes by addressing bias 
before it manifests itself in violent criminal activity. In the 
meantime, however, it is imperative that we have the law 
enforcement tools necessary to ensure that when hate crimes do 
occur, the perpetrators are identified and swiftly brought to 
justice.
    S. 622 would provide this essential tool. The enactment of 
this statute would significantly increase the ability of State 
and Federal law enforcement agencies to work together to solve 
and to prevent a wide range of violent hate crimes committed 
because of bias based on the race, color, national origin, 
religion, sexual orientation, gender, or disability of the 
victim. This bill is, I believe, a thoughtful, measured 
response to a critical problem facing our Nation.
    I look forward to answering any questions that any of you 
might have. Thank you very much.
    The Chairman. Thank you. We appreciate your testimony here 
today, and we are concerned, naturally, about what best to do.
    In your written testimony, you acknowledge that the data we 
now have under the Hate Crimes Statistics Act are, 
``inadequate.'' It is precisely for this reason that I believe 
that a thorough analysis of additional data, as well as 
existing data under that Act must be conducted prior to taking 
the dramatic step of enacting an expansive new Federal law 
that, under the letter of S. 622, could be used to displace 
State and local prosecutions of virtually all hate crimes.
    Why wouldn't this course of action, together with the other 
proposals I discussed regarding Federal funding to State and 
local authorities and development of a model hate crimes 
statute--why wouldn't that be wiser than adopting a new law 
based upon what you call inadequate data?
    Mr. Holder. Mr. Chairman, I think that the proposal that 
you have made is a very good starting point. I think that 622 
goes a little farther, but not inappropriately farther. The 
purpose of 622 is to try to give us the ability to help State 
and local authorities in the fight against hate crimes. It is 
not our intention to displace them. They would still have the 
primary responsibility in that regard in much the same way that 
State and local authorities now prosecute gun and drug cases 
that could be brought into Federal court as well. It is not the 
intention of 622 or the administration to displace State and 
local authorities in that regard.
    The Chairman. Well, having said that, I would like to 
clarify your thinking on when Federal involvement in matters 
that are traditionally reserved to the States really is 
warranted, especially in this area, because you have said at 
various points in your testimony that local law enforcement 
does, and should continue to have the primary role in 
prosecuting hate crimes.
    Now, those statements would not seem to support enactment 
of a broad, new Federal hate crime law, since far beyond the 
conceding the adequacy of State and local authorities, you have 
praised such authorities as doing, ``an enormous job in 
investigating and prosecuting,'' hate crimes. So, clarify that 
for me. When is Federal involvement warranted in these matters 
that you agree traditionally should be reserved to the States?
    Mr. Holder. Well, I think Federal involvement is always 
good in instances where we can help, but I think we would look 
to find those instances--and it has to be done on a case-by-
case basis--where a State or locality would be unable or 
unwilling to prosecute a case. There are various instances 
where localities simply do not have the technical expertise, 
and we would be able to help in that regard.
    There are instances, unfortunately--not very many--where 
local jurisdictions, for whatever reason, are unwilling to 
proceed in cases that we think should be prosecuted. And in 
those rare instances, we think a Federal role is appropriate.
    The Chairman. Mr. Holder, you contend that the enactment of 
S. 622 would result only in a, ``modest increase,'' if I got it 
correctly, in the number of Federal prosecutions for hate 
crimes, which recently has been only about 6 per year, as I 
understand it----
    Mr. Holder. That is about right.
    The Chairman [continuing]. But would, ``significantly help 
in our ability to assist local and State prosecutions.'' Now, 
my concern is, isn't S. 622 awfully strong medicine for such 
modest hopes? If all you are after is assistance to State and 
local authorities, why not advocate a proposal that does 
precisely that? Now, that is an important question to me 
because I am looking at these things as broadly as I can, too, 
and I want to do what is right in this area.
    Mr. Holder. We not only want to assist, where that is 
appropriate, and 622 will help us in that regard. We also want 
to have the ability to prosecute ourselves in those instances 
where we think there is a basis for Federal involvement, where, 
as I said before, there is a locality, a State that is unable 
or unwilling to proceed. Without 622, the Federal Government 
would not have the ability to enter into those kinds of cases.
    The Chairman. But can you tell me any specific instances in 
which State law enforcement authorities have deliberately 
failed to enforce the law against the perpetrator of a crime? I 
understand that some States do not have hate crime statutes 
that cover sexual orientation or gender handicap, et cetera, 
but those States still do, do they not, outlaw the underlying 
crime? As I understand it, murder and assault are criminalized 
in every State in the country today.
    So the question is can you give me specific instances where 
the States have failed in their duty? And if they are not 
failing in their duty, why shouldn't we try to do this in a way 
that accentuates and augments their ability to do a better job?
    Mr. Holder. First, I want to emphasize that the vast 
majority of cases that should be brought are brought by State 
and local authorities. There are, however, rare instances where 
that has not occurred. I do not have the ability right now to 
give any of those cases to you, but I will be more than glad to 
respond in writing to that question and to outline for you----
    The Chairman. I would like to really put that one to bed, 
and I think you are in the best position--you and the Attorney 
General are in the best position to do that because if the 
States are doing the job, then what is the need for really 
broad Federal legislation that basically may not be necessary 
under the circumstances?
    So if you will provide that to the committee, I would like 
to get that sooner rather than later because that is one of the 
key questions here and one of the key problems that we have to 
resolve. It is one thing for all of us to decry hate crimes, 
regardless of what they are. It is another thing to expand 
Federal jurisdictions in areas where really we don't need to do 
so, and probably shouldn't do so.
    Authorities in Jasper, TX, secured a death penalty against 
one of the defendants without using hate crime legislation, 
while no death penalty is even provided for in S. 622. Isn't it 
altogether possible, then, that a jurisdiction that does not 
have a hate crime law might, in actuality, prosecute the same 
criminal acts more harshly than under a State or Federal hate 
crimes statute? And if so, how does the prosecution under the 
hate crimes statute provide a greater deterrent against hate-
based criminal conduct?
    Mr. Holder. Well, again, a determination has to be made on 
a case-by-case basis. And looking at a particular case, a State 
penalty might be more appropriate than the Federal penalty that 
is provided in S. 622. We would look at the fact situations 
that were presented to us and then determine, in conjunction 
with our State and local counterparts, where the case could be 
best brought. We have signed a memorandum of understanding with 
the National District Attorneys Association to do exactly that 
kind of thing.
    The Chairman. Would the Department of Justice want to make 
a determination on every case that comes up as to what to do if 
you had this bill?
    Mr. Holder. No, certainly not. I don't think that every 
case involving hate crimes will be brought to our attention. We 
would like the ability, however, to use the Federal resources 
that we have, the expertise that we have developed, the 
expertise we have in our Civil Rights Division and in our 
Federal Bureau of Investigation, to bring those to bear in 
those cases where Federal involvement is appropriate.
    The Chairman. Now, let me ask you about the inclusion of 
gender in S. 622. Rapists are very seldom indifferent to the 
gender of their victims. So would you say that all rapists 
would be covered under S. 622's requirement that the 
perpetrator of a crime act, ``because of,'' the victim's 
gender?
    Mr. Holder. Not all rape cases would be brought in Federal 
court. Not all assaults on women would be brought in Federal 
court. Again, we would have to look at the specific facts of a 
case, see what the State-local response was going to be in that 
case, and then decide in a very limited number of cases where 
the Federal Government should take an active prosecutorial 
role.
    Again, if the statute is passed, we would be able to help 
our State and local counterparts in a technical way with 
regard, again, to the expertise that we have in the Federal 
Government.
    The Chairman. Well, despite your claim that the Department 
of Justice guidelines would limit your prosecution of these 
cases, is it not true that the statutory language of S. 622 
would enable Federal prosecutors to prosecute any rape in 
which, say, a phone call had first been made by the perpetrator 
to the victim? Thus, it would meet the instrumentality of the 
interstate commerce requirement.
    Mr. Holder. I don't know. I would have to look at that. I 
mean, there is the interstate commerce connection and that is a 
very serious thing that has to be proven by the Government 
beyond a reasonable doubt in connection with gender-based hate 
crimes. It is possible that if a phone call were made that that 
might satisfy that element.
    That does not mean, however, that there would be the 
wholesale bringing of rape cases into the Federal system. 
Again, we will have guidelines within the Justice Department to 
make sure that we only become involved in those cases where it 
is appropriate, always looking again to our State and local 
counterparts to be the primary actors in this regard.
    And I would emphasize again that if you look at the way in 
which our gun laws are constructed, the way our drug laws are 
constructed, these are cases that could be almost all brought 
into Federal court. And yet they are not because we exercise 
discretion in a responsible way and work with our State and 
local counterparts, and I think that in this regard we would do 
something very similar.
    The Chairman. Well, thank you. We are holding this hearing 
in response to my promise last year to hold at least a hearing 
on hate crimes. But we may need to hold more than this hearing 
because there are some groups that have felt like they were 
excluded. Of course, naturally, we only have so much time. We 
have tried to make sure that people of varying viewpoints have 
a right to testify. But I appreciate you being here today and 
your testimony.
    We will turn to Senator Kennedy.
    Senator Kennedy. Thank you very much, Mr. Chairman. What we 
are really talking about are these types of crimes that are so 
horrific in terms of their nature, they are really not just 
directed at an individual, but are really directed at a whole 
community and really the society. I mean, in the case of, as I 
understand it, the rape, you have obviously got to have the 
connection in terms of interstate commerce. You have got to 
have the nexus, but then you have to be able to show the gender 
animus that is out there.
    So this doesn't apply to every rape case. You have got to 
be able to demonstrate that this is a mind set individuals are 
going to have on the basis of race or in terms of sexual 
orientation, or in terms of whatever these criteria are. This 
was described in an earlier comment today as sort of a modern 
lynching of a fellow American citizen. I mean, that is the kind 
of thing that we are talking about, aren't we?
    I think the kinds of cases that all come to mind bring that 
mind set, and it isn't just something that is in a particular 
location; it is something that scars the Nation. I mean, that 
is what we are talking about here, it seems to me, and we are 
setting the criteria by which the Justice Department then will 
make the judgment in these circumstances that it meets these 
particular requirements, and in those limited cases is going to 
demonstrate that it is going to be involved, working with the 
local community and the State, not superseding them, but it is 
going to be working with them.
    It seems to me that to try to suggest that this is going to 
just sort of open up--as former Attorney General Ed Meese sort 
of suggested, look, we have got too many crimes that are up in 
the Federal jurisdiction; we don't need more. We have got to 
understand what we are talking about with these circumstances. 
This goes to the core of our society and what the country is 
about and whether we are going to take action, whether we are 
going to permit this. People know what is going on here.
    We want to work with our other colleagues here, but this 
isn't just another issue about jurisdiction on land takings. We 
are talking about something that reaches the core of our whole 
society and our values as a society, and constitutionally 
protected rights in our society as well. I mean, that is what 
we are talking about, whether we are going to have the full 
force of our national Government protecting these 
constitutional rights of our fellow citizens, it seems to me.
    But I gather, General, that you don't believe that the 
number of cases that will be brought will in any way really 
burden the Federal court system. I mean, as I understand it, 
the kinds of cases that would be brought would certainly be 
appropriate that they be brought.
    I can remember the testimony we had last year from Lubbock 
TX, from the district attorney, about three white men and three 
blacks, and the whites assaulting the blacks and the local 
district attorney saying this would take nine trials in 
Lubbock, TX, while the Federal Government could do it all in 
one and get to the core of what was being really addressed out 
there.
    So I think it is enormously useful for the Justice 
Department to provide those kinds of cases. Obviously, you 
won't be able to go back over them and talk to the local people 
probably about them, but give us those kinds of illustrations. 
But I gather from what your testimony is, you don't believe 
that this is an undue burden, or would be, in terms of our 
Federal judicial system.
    Mr. Holder. I don't believe so, Senator. The restrictions 
that are placed in the statute, I think, are appropriate ones. 
To prove an interstate commerce connection beyond a reasonable 
doubt is not always a very easy thing to do. I was a Federal 
prosecutor of public corruption cases, and the Federal 
extortion statute requires us to prove an interstate commerce 
connection and that is oftentimes a very difficult thing to 
prove. There are other checks within the statute--the gender 
animus that you mentioned with regard to gender-based crimes.
    All of these things, I think, in addition to the sound 
exercise of discretion that we will use in the Justice 
Department, would minimize the impact on the Federal system. We 
have also asked for additional resources, not a huge number of 
prosecutors and agents, but additional resources in order to 
handle what I think would be a modest increase in the number of 
cases that we would have to handle.
    I would also like to echo one thing that you said, Senator, 
and that is that we have to view these cases in, it seems to 
me, the truest context. Matthew Shepard was clearly the victim 
of a brutal killing. The gay and lesbian community were also 
victims in that, but we as Americans were diminished by that 
very act. Our Nation was diminished by that act, and that is 
why I think a Federal response in these kinds of matters is 
wholly appropriate.
    Senator Kennedy. Well, I couldn't agree with you more. I 
firmly believe that this is, as we will hear later from our 
district attorney from New York, basically a law enforcement 
issue. This is a criminal issue and it is a constitutional 
issue, as well as a civil rights issue, and it is one that this 
country ought to be about.
    We always hear around here these marvelous lectures, well, 
let's just pass another bill; that will really stop everything. 
And this, we know, will send the message out there that the 
full resources and commitment in terms of the protection of 
these constitutional rights and liberties are going to be 
protected. That is, I think, a core responsibility of the 
Federal Government; that is a core responsibility. And to deny 
them, I think we fail our responsibility in this way.
    So I would like to submit some questions, too, Mr. 
Chairman.
    The Chairman. Thank you, Senator Kennedy.
    Senator Kennedy. I thank the General for being up here and 
for his strong and effective support. Thank you very much, Mr. 
Holder.
    Mr. Holder. Thank you, Senator.
    The Chairman. Now, Senator Kennedy raises some important 
points, and I am very concerned about this. I want to do what 
is right in this area. I have been led to believe by many in 
the State and local law enforcement community that they don't 
need a major new Federal law.
    On the other hand, if there is evidence that they are not 
doing their job or that they are not enforcing the laws that 
currently exist--see, I happen to think that most people 
believe that every rape case involves an antigender bias, or 
mind set, to use Senator Kennedy's words. And that will be 
argued in every rape case if S. 622 passes.
    It may be that 622 is what needs to be done, but the fact 
of the matter is your providing this information is absolutely 
critical to me because I don't want any hate crimes to exist in 
our society, but I also don't want to overdo the law if hate 
crimes can and are being handled effectively and in good ways 
by the State and local people, and the Federal Government where 
it does have laws currently on the books.
    I want to thank you for being here. We always appreciate 
you coming up here and testifying to us, and we will submit 
additional questions and we will keep the record open for 
additional questions.
    We will turn to Senator Specter and then we will move on to 
the next panel.
    Senator Specter. Thank you very much, Mr. Chairman.
    We were just conferring. I had gotten a note from Senator 
Hatch that he had other commitments and asked me to join to 
pick up on the chairman's----
    The Chairman. I am going to leave in just a few minutes, 
but I would like to introduce the second panel and at least 
stay for a couple of the witnesses, if I can. But it is my bill 
on the floor, so I pretty well have to get back there.
    Senator Specter. Well, the schedules here, as you know, Mr. 
Holder, have us in a lot of directions. I have just come from a 
Defense appropriations subcommittee with Secretary of Defense 
Cohen and General Shelton trying to figure out how much money 
to give on the conference on appropriations this afternoon. So 
there are many, many items which occupy our attention.
    I, of course, have missed the testimony so far, and I hope 
I am not covering old ground, but on the hate crime legislation 
which I have cosponsored, it seems to me that it is important 
to have the backdrop of Federal jurisdiction where it is not 
limited to show the deprivation of a civil right, which is a 
highly technical matter which could impede the Federal 
Government coming in.
    And I strongly believe that prosecutions ought to be 
maintained at the local level, and I have maintained that since 
my days as district attorney of Philadelphia when I strongly 
resisted either the State attorney general or the U.S. 
Department of Justice coming into a field where there was 
jurisdiction by the local prosecutor.
    But when we deal with these hate crimes, we find that they 
are really hot potatoes, and in many cases the local 
prosecutors are unwilling to handle them because they involve 
very highly sensitive issues where there is very strong 
community feeling against people based on racial grounds, based 
on sexual orientation, based on other grounds which ought not 
to be considered where you have a criminal prosecution.
    And my question to you would be to what extent the 
Department of Justice experience which you have seen shows that 
the local prosecutors do shy away from these very sensitive, 
hot potato kinds of cases, and that it is an unusual area where 
you need to have the backdrop of Federal prosecution, which may 
come not from the local community where these pressures are so 
intensely felt.
    Mr. Holder. I actually think it is fairly rare where we 
have hate crimes where local prosecutors, for inappropriate 
reasons, decide not to pursue them. I think we see more 
instances where there is an inability to prosecute in an 
effective way these kinds of cases, which is not to say, 
however, as you indicated, that there are sometimes cases, 
unfortunately, that for a variety of reasons that I would 
consider inappropriate----
    Senator Specter. Why an inability, Mr. Holder?
    Mr. Holder. Well, sometimes not the technical expertise. I 
mean, if we look, for instance, at what happened in Jasper, and 
if you talk to the DA down there or the police down there, they 
will indicate to you that the help of the Federal Bureau of 
Investigation in doing forensic kinds of things was critical in 
making that case successful. The ability that we shared with 
them in the sentencing phase was also, I think they would say, 
of great assistance to them. There are technical things, there 
are other resources that we can bring to help State and local 
prosecutors, who will be the primary actors even after 622 was 
passed.
    Senator Specter. To what extent do you find racial animus a 
limiting factor for local prosecutions in some areas in the 
country? It is a sad thing that 45 years after Brown v. Board 
of Education that the racism is still with us, but I don't 
think there is any denying it. And we see it in so many 
activities. We see it in election campaigns, we see it in all 
levels in our society. We see it in personal relationships, and 
I think we see it in criminal prosecutions as well. We have 
these specific incidents of African-Americans being targeted. 
To what extent is that a factor that limits local prosecutions, 
in your opinion?
    Mr. Holder. I think the vast majority of State and local 
DA's do the right thing, but the passage of this statute will 
allow us, the Federal Government, to serve as a backdrop in 
those instances that I think are fairly rare, but in those 
instances where, for whatever reason, a State or local 
prosecutor does not do the right thing, does not prosecute a 
case where a hate crime is based on race.
    We now have an inability to get involved in those instances 
because we have those federally protected activities that we 
have to meet. Were those gone, I think we would feel--our 
Nation would feel fairly confident that at some level, all 
those kinds of cases would be prosecuted either by State and 
locals or by the Federal Government. We are prevented at this 
point from intervening in many of these cases where our 
intervention would be appropriate.
    Senator Specter. There has been a special upsurge in 
violence against individuals because of sexual orientation, 
really sort of shocking as to what has occurred. To what extent 
is that a factor? Has that overtaken race as the biggest 
problem on the so-called hate crimes agenda?
    Mr. Holder. I am not sure what our statistics show. 
Senator, I would be more than glad to share information with 
you. I am sure we have something back in the Department. But I 
think that the problem of hate crimes based on sexual 
orientation is one that I think has always been with us, one 
that I think we have given increasing attention to in recent 
years, and one that frankly disturbs me a great deal.
    Senator Specter. You think it has always been with us? I 
think it is a lot more intense now, perhaps because there is 
more of a willingness of people who have differing views to 
step forward. But the intensity of those crimes has stepped up 
enormously since my days as district attorney in Philadelphia. 
It was really unheard of, and now it is regrettably very, very 
frequent.
    Mr. Holder. I think it has become more frequent, but I am 
not at all certain that it is something that was, in the past 
when we did not have the gay rights movement, where people were 
reluctant to come forward and to report these incidents for a 
variety of reasons--I mean, I think that is certainly one of 
the positive aspects of the gay rights movement, people 
unafraid to say that I was attacked because I was a gay man, I 
was a gay woman.
    I think that is at least one of the reasons why I believe 
there has always been that kind of violence and why we now see 
it more widely reported, though I will agree with you that in a 
lot of ways the intensity of the attacks that we have seen in 
recent years is different from what perhaps we have seen in the 
past.
    Senator Specter. How about other hate crimes? To what 
extent do we find hate crimes against people because of 
religious beliefs?
    Mr. Holder. We still see that. You know, we see too often 
instances of swastikas and things painted on the houses of 
Jewish people. I see it on local television here in Washington 
at least two, three times a year, it seems, things done to 
schools. We as a Nation have made great progress, and yet some 
people still engage in that conduct that the vast majority of 
us find to be reprehensible. So I still think that is a problem 
for us as a Nation.
    Senator Specter. When I was a freshman at the University of 
Oklahoma, member of Pi Lambda Phi, which was a Jewish 
fraternity, there was a swastika painted on our sidewalk, a 
sharp reminder. That was the day when Adelo Ascipial tried to 
get into the University of Oklahoma Law School. They had a 
separate law school in Oklahoma City and they decided they 
couldn't afford it, so they brought her down to Norman, OK. But 
they wouldn't put her in a classroom. She was African-American. 
They wouldn't put her in a classroom with white students, so 
they put her right outside the door so that she could look in 
but wouldn't be in the room. And then when that didn't work 
out, they put her inside the room and built a little playpen 
around her so she would be isolated.
    And one of my fraternity brothers, Howard Friedman, went 
out to the mall at the University of Oklahoma and they burned 
the Constitution, and had the postman there to send it to 
President Truman--see, this was a long time ago--because the 
Constitution didn't exist in Oklahoma. And then they took the 
little playpen down and Adelo Ascipial went to school with 
everybody else. So it took some time.
    Well, I commend you, Mr. Deputy Attorney General, for your 
work in this field and for the Department's strong support for 
this legislation. As soon as we get Senator Hatch on board, we 
will get it passed. [Laughter.]
    Mr. Holder. Thank you, Senator.
    The Chairman. Keep working on me.
    I want to thank you for being here, Mr. Holder. We 
appreciate you taking the time.
    Mr. Holder. Thank you, Mr. Chairman.
    [The prepared statement of Mr. Holder follows:]

               Prepared Statement of Eric H. Holder, Jr.

    Mr. Chairman, Members of the Committee, thank you for the 
opportunity to testify today on the important and troubling issue of 
hate crimes. The Administration very much appreciates your decision to 
hold this hearing. President Clinton and the Attorney General have 
remained deeply committed to prosecuting and preventing hate crimes 
since the 1997 White House Conference on Hate Crimes. We continue to 
dedicate significant time and resources to this issue. The battle 
against hate crimes has always been bipartisan, and this Committee has 
always been at the forefront of that battle. Members of this Committee 
have long recognized that hate crimes have no place in a civilized 
society, whether based on the race, religion, ethnicity, sexual 
orientation, gender, or disability of the victims. In 1990 and 1994, 
the Committee strongly supported the enactment of the Hate Crimes 
Statistics Act and the Hate Crimes Sentencing Enhancement Act. In 1996, 
the Committee responded in a time of great national need by quickly 
endorsing the Church Arson Prevention Act. I am hopeful that you will 
respond once again to the call for a stronger federal stand against 
hate crimes, and that you will join law enforcement officials and 
community leaders from across the country in support of S. 622, the 
Hate Crimes Prevention Act of 1999. The bill enjoys bipartisan support 
in both the House and the Senate. If enacted, this legislation will 
continue the tradition of forceful Congressional action to eradicate 
hate crimes.
    Unfortunately, recent events have only reemphasized the devastation 
that hate crimes can bring to a community. This past February, in 
Sylacauga, Alabama, the body of 39-year-old Billy Jack Gaither was 
found bludgeoned with an ax handle and charred on a pile of burned 
tires; killed, as one paper described it, ``for being himself.'' Last 
October, in Laramie, Wyoming, Matthew Shepard, an openly gay young man, 
was found badly beaten and tied to a fence. He died five days later 
from 18 blows to the head. The state charged two men with the murder; 
one defendant has pled guilty to the murder, and the second awaits 
trail on first-degree murder charges. And last June, the nation was 
horrified by the dragging death of James Byrd, Jr., an African-American 
man. We, as a nation, are stunned and horrified at the hatred and 
brutality of these crimes.
    Preventing hate crimes and eliminating bigotry and bitterness are 
among our most important challenges. There is never an excuse for 
violence against an innocent person. But these attacks, committed 
because the victims look different, practice a different faith, or have 
a different sexual orientation, threaten America's most cherished 
ideals. They represent an attack not just on the individual victim, but 
on the victim's community. And their impact is broader because they 
send a message of hate. They are intended to create fear and 
dissension.
    These incidents and other hate crimes like them are not just a law 
enforcement problem. They are a problem for the entire community: for 
our schools, for our religious institutions, for our civic 
organizations and for each one of us as an individual. And when we come 
together to respond to these crimes, we help build communities that are 
safer, stronger and more tolerant. All of us working together--at the 
federal, state, local, and community levels--must redouble our efforts 
to rid our society of hate crimes.

                   I. The Problem and Current Efforts

                        a. inadequate reporting
    First, we must gain a better understanding of the problem. The data 
we have now are inadequate. As a result of the Hate Crimes Statistics 
Act, enacted in 1990, the FBI began collecting information from law 
enforcement agencies around the country. In 1991, the first year that 
the FBI reported its findings, 2,700 law enforcement agencies reported 
4,560 hate crimes. In 1997, the last year for which we have statistics, 
11,211 law enforcement agencies participated in the data collection 
program and reported 8,049 hate crime incidents.
    8,049 hate crime incidents represent almost one hate crime incident 
per hour. But we know that even this disturbing number significantly 
underestimates the true level of hate crimes. Many victims do not 
report these crimes. Police departments do not always recognize hate 
crimes. Many don't collect any hate crime data. And about 80 percent of 
those that do, even some in large metropolitan areas, report few or no 
hate crimes in their jurisdictions, even when most observers conclude a 
larger problem exists.
                              b. training
    There are many ways to improve our data collection. First and 
foremost, increased hate crime training for law enforcement officials 
is essential. Police officers must know how to identify the signs of a 
hate crime. What might appear to some as a crime like so many others, 
can turn out, upon investigation, to be motivated by bias.
    Some of you may know that, about a year and a half ago, President 
Clinton launched, at a first-ever White House Conference on Hate 
Crimes, a multi-faceted Hate Crimes Initiative. The Department of 
Justice is a integral part of this effort, which includes improving 
data collection and enhancing law enforcement training. To meet these 
goals, we recently commissioned a study by Northeastern University to 
survey some 2,500 law enforcement agencies in order to better 
understand and improve police reporting practices; and we brought 
together state police academies, police chiefs, state attorneys general 
and others around the country to develop uniform curricula for hate 
crime training. As a result of these efforts, the Department now has 
available three law enforcement training curricula on hate crimes--for 
patrol officers, investigators, and a mixed audience. Since December 
1998, more than 500 law enforcement officers have been trained with 
Department of Justice curricula. We also work with communities in their 
own training and outreach efforts. Next week, Bill Lann Lee, the Acting 
Assistant Attorney General for Civil Rights, will attend a conference 
in Ogden, Utah, entitled ``The Changing Faces of Hate.'' This 
conference, sponsored by the Utah U.S. Attorney's Office, the Simon 
Wiesenthal Center, Weber State University and the Utah Task Force for 
Racial and Ethnic Fairness will explore the ways communities can come 
together to eradicate these horrendous crimes and educate communities 
about understanding and tolerance.
                      c. prosecutions: current law
    Identification and reporting are, of course, not a complete answer. 
We must also ensure that potential hate crimes are investigated 
thoroughly, prosecuted swiftly and punished soundly. Our long term goal 
must be to prevent hate crimes by addressing bias before it manifests 
itself in violent criminal activity. In the meantime, however, it is 
imperative that we have the law enforcement tools necessary to ensure 
that, when hate crimes do occur, the perpetrators are identified and 
swiftly brought to justice.
    We know that we are most effective when we work together. The 
centerpiece of the Administration's Hate Crime Initiative is the 
formation of local working groups in United States Attorneys' districts 
around the country. These task forces are hard at work bringing 
together the FBI, the U.S. Attorney's office, the Community Relations 
Service, local law enforcement, community leaders and educators to 
coordinate our response to hate crimes. The groups are assessing the 
hate crime problem in their local areas and developing specific 
strategies to respond to the problem. While local law enforcement has 
the primary role in responding to and pursuing these crimes federal law 
enforcement can provide additional resources and can assist with 
training. And by involving community organizations in these working 
groups, we are enhancing our ability to prosecute these crimes. Quite 
simply we are more effective when we enjoy the trust and support of the 
community. Community support makes it easier to uncover information, 
enlist witnesses to testify, and solve cases.
    The principal federal hate crimes statute, 18 U.S.C. Sec. 245, 
prohibits certain hate crimes committed on the basis of race, color, 
religion, or national origin. 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 
participation in any of six ``federally protected activities'' 
specifically enumerated in the statute. The six enumerated ``federally 
protected activities,'' written into the law 30 years ago when Congress 
first enacted the statute, 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.
    State and local officials are on the front lines and do an enormous 
job in investigating and prosecuting hate crimes that occur in their 
communities. In fact, most hate crimes are investigated and prosecuted 
at the state level. But we want to make sure that federal jurisdiction 
to prosecute hate crimes covers everything that it should. Concurrent 
federal jurisdiction is needed to authorize the federal government to 
share its law enforcement resources, forensic expertise, and civil 
rights experience with state and local officials. And in rare 
circumstances--where state or local officials are unable or unwilling 
to bring appropriate criminal charges in state court, or where federal 
law or procedure is significantly better suited to the vindication of 
the federal interest--the United States must be able to bring federal 
civil rights charges. In these special cases, the public is served 
when, after consultation with state and local authorities, prosecutors 
have a federal alternative as an option.
                             d. federalism
    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 does exist in 
the limited hate crimes contexts authorized by 18 U.S.C. Sec. 245, the 
federal government's resources, forensic expertise, and experience in 
the identification and proof of hate-based motivation often provide an 
invaluable investigative complement to the familiarity of local 
investigators with the local community and its people. 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.
    Such cooperative efforts have recently been reinforced by the July, 
1998, Memorandum of Understanding (MOU) between the National District 
Attorneys Association and the Department of Justice. This MOU was 
signed by the Attorney General and William Murphy, President of the 
NDAA, on behalf of district attorneys offices. The MOU is intended to 
foster a more cooperative approach by local, state and federal 
authorities in the investigation and prosecution of color of law and 
hate crimes cases. It requires early communication among local, state 
and federal prosecutors to explore the most effective way to 
investigate these cases and to utilize the best investigative resources 
or combination of resources available. There are many benefits to such 
an approach: it encourages the use of coordinated or joint local, state 
and federal investigations in those instances where coordinated or 
joint investigation is in the best interest of justice; it decreases 
time delay between local, state and federal authorities about these 
important cases; and it increases public confidence in the criminal 
justice system. It is this type of cooperative effort, endorsed by the 
Department of Justice and the National District Attorneys Association, 
that maximizes all of our law enforcement capabilities in these 
important cases.
    It is 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. Sec. 247 and other federal criminal statutes that 
have no limitations analogous to the ``federally protected activity'' 
requirement of 18 U.S.C. Sec. 245. Created almost three years ago to 
address a rash of church fires across the country, the Task Force's 
federal prosecutors and investigators from ATF and the FBI have 
collaborated with state and local officials in the investigation of 
each and every church arson that has occurred since January 1, 1995.
    The results of these state-federal partnerships have been 
extraordinary. Thirty-four percent of the joint state-federal church 
arson investigations conducted during the life of the Task Force have 
resulted in arrests of one or more suspects on state or federal 
charges. The Task Force's 34 percent arrest rate is 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 have been prosecuted in state court under state law. Because the 
Department of Justice has not maintained statistics regarding the 
outcomes of the joint state-federal hate crimes investigations in which 
it has participated, we are unable to provide similarly stark 
statistical information regarding arrest rates in hate crimes cases. 
Nevertheless, we are confident that additional state-federal 
partnerships would 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. We certainly know, from example, that these joint efforts have 
been extremely successfully.
    We have a particularly effective example of these partnerships in 
South Carolina, where a team of agents from federal, state, and local 
law enforcement agencies worked hand-in-hand to bring to justice a 
group of Ku Klux Klansmen responsible for a wave of crimes across the 
north-eastern part of that state. Representatives from the Justice 
Department and several state district attorneys offices met to chart 
the course the investigation would take. These meetings were not 
without issues of turf, but eventually the agents worked together to 
compare the relative strength of the statutes involved, the available 
resources, and the potential terms of imprisonment for state v. federal 
prosecutions. In the end, they decided it made sense to use both 
sources of jurisdiction. So they formed a joint federal-state task 
force.
    Both the federal and state governments devoted agents, prosecutors, 
and supporting resources to the joint investigative team, which used 
the nationwide subpoena power of a federal grand jury sitting in 
Charleston, South Carolina. Federal agents from the FBI and ATF rode 
together as partners with agents of the South Carolina State Law 
Enforcement Division (SLED) and the fire departments from the counties 
affected. Their investigation led to five Klansmen being charged with 
two church arsons, the assault with intent to kill a black mentally 
retarded man, arsons of several migrant camps, and various firearms 
offenses. To date, these are the only convictions of members of an 
organized white supremacist group arising out of the rash of church 
fires. Those five Ku Klux Klansmen stand convicted on both state and 
federal offenses and have been sentenced to serve real time prison 
terms of between 15 and 21\1/2\ years.
    Another example occurred in April, when the co-chairs of the Church 
Arson Task Force joined U.S. Attorneys in Indiana and Georgia to 
announce the indictment of a defendant for ten fires in those two 
states, the largest number of fires charged to any one defendant during 
the life of the Task Force. One of the Georgia fires resulted in the 
death of a volunteer firefighter, and injuries to three others. It was 
a local officer in Indiana involved with that district's church arson 
task force that recognized the name of the defendant when he heard a 
report on an ambulance pickup for severe burns. He questioned the 
suspect at the hospital and called federal officials. The hard work of 
investigators from the FBI, the ATF, and the local arson and law 
enforcement offices led to charges in other fires in Indiana, and 
ultimately to charges in Georgia. The investigation continues in many 
other districts, supported by federal investigators and prosecutors.

                        II. Gaps in Current Law

    The current federal hate crimes law has two serious deficits. 
First, even in the most blatant cases of racial, ethnic, or religious 
violence, no federal jurisdiction exists unless the federally protected 
activity requirement is satisfied. This unnecessary, extra intent 
requirement has led to acquittals in several of the cases in which the 
Department of Justice has determined a need to assert federal 
jurisdiction and 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. 
Second, Sec. 245 provides no coverage whatsoever for violent hate 
crimes committed because of bias based on the victim's sexual 
orientation, gender, or disability. Together, these limitations have 
prevented the federal government from working with state and local law 
enforcement agencies in the investigation and prosecution of many of 
the most heinous hate crimes.\1\
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    \1\ Roughly two-thirds of the hate crimes prosecuted under federal 
law are pursued as criminal violations of the Fair Housing Act, which 
protects the rights of all persons to live wherever they choose free 
from violence because of their race, religion, national origin, family 
status, gender, or handicap. While this statute broadly protects 
interference with the housing process, it is limited to residential 
property and thus has significant limitations.
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    S. 622, the Hate Crimes Prevention Act of 1999, would amend 18 
U.S.C. Sec. 245 to address each of these jurisdictional limitations. In 
cases involving racial, religious, or ethnic violence, the bill would 
prohibit 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 hate 
crimes based on the victim's sexual orientation, gender, or disability, 
the bill would prohibit the intentional infliction of bodily injury 
whenever the incident involved or affected interstate commerce. These 
amendments to 18 U.S.C. Sec. 245 would 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.
    The Hate Crimes Prevention Act is a good fix. Earlier this month, 
President Clinton joined with a bipartisan group of legislators to urge 
its swift passage. I am pleased to join him in offering my strong 
support of this bill.
    It must be emphasized that, even with enactment of the bill, state 
and local law enforcement agencies would continue to play the principal 
role in the investigation and Prosecution of all types of hate crimes. 
From 1993 through 1998, the Department of Justice brought a total of 
only 32 federal hate crimes prosecutions under 18 U.S.C. Sec. 245--an 
average of fewer than six per year. We expect that the enactment of S. 
622 would result in a modest increase in this number but would 
significantly help in our ability to assist local and state 
prosecutions. Our partnership with state and local law enforcement 
would continue, with state and local prosecutors continuing to take the 
lead in the great majority of cases.
            a. the federally protected activity requirement
    In several cases in recent years, the Department of Justice has 
sought to satisfy the federally protected activity requirement by 
alleging that hate crimes occurred on public streets or sidewalks--
i.e., while the victims were using ``facilities'' provided or 
administered by a State or local government.\2\ The Department has used 
this theory successfully to prosecute the stabbing death of Yankel 
Rosenbaum in Brooklyn (Crown Heights), New York and the racially-
motivated shooting of three African-American men on the streets of 
Lubbock, Texas.\3\ Although the ``streets and sidewalks'' theory has 
enabled the Department to reach some bias crimes that occur in public 
places, these prosecutions remain subject to challenge. In the Lubbock 
case, for example the defendants appealed their convictions, arguing 
that public streets and sidewalks are not ``facilities'' that are 
``Provided or administered'' by a state subdivision within the meaning 
of 18 U.S.C. Sec. 245(b)(2)(B). The United States Court of Appeals for 
the Fifth Circuit upheld the Lubbock convictions in a short, 
unpublished opinion. But an appeal on similar grounds in the Crown 
Heights case is now pending before the Second Circuit.
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    \2\ See 18 U.S.C. Sec. 245(b)(2)(B).
    \3\ The Department of Justice brought federal civil rights charges 
against two defendants in the Crown Heights case after the state failed 
to charge one of the defendants in state court and the state's case 
against the second defendant ended in acquittal. The Department brought 
federal charges against three defendants in the Lubbock case when 
federal and local prosecutors, who had collaborated throughout the 
investigation, agreed that the procedures and sentences available in 
federal court were significantly better suited to the interests of law 
enforcement, of the victims of the crime, and of the entire affected 
community than were those available in state court.
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    In some cases, this jurisdictional problem has undermined the 
vindication of the federal interest in fighting hate-based violence. 
Let me briefly tell you about three cases where the Department of 
Justice brought federal hate crimes prosecutions under 18 U.S.C. 
Sec. 245 after state and local prosecutors were unsuccessful at, or 
declined to bring prosecutions under state law. In each case, the 
Department lost at trial due to the statute's ``federally protected 
activity'' requirement:

   In 1994, a federal jury in Fort Worth, Texas 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. Sec. 245.

   In 1982, two white men chased a man of Asian descent from a 
        night club in Detroit and beat him to death. The Department of 
        Justice prosecuted the two perpetrators under 18 U.S.C. 
        Sec. 245, 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, Indiana. The Department of Justice 
        prosecuted the shooter under 18 U.S.C. Sec. 245, 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.

    Each of these cases involved a heinous act of violence clearly 
motivated by the race, color, religion, or national origin of the 
victim. In these cases, state prosecutors sought federal assistance due 
to inadequate state laws or prosecutions, or they did not bring state 
criminal charges at all. Yet in each case, the extra intent requirement 
of 18 U.S.C. Sec. 245--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.
    Although a number of federal prosecutions under Sec. 245 have been 
successfully pursued, even those successes highlight the arbitrariness 
of the coverage of the federal statutes. For example, in 1996, five 
skinheads were successfully prosecuted under Sec. 245 for brutally 
assaulting an interracial couple in a city park in Des Moines, Iowa. 
Had the victims been standing outside the park instead of sitting on a 
bench inside the park entrance, it is likely that the assault could not 
have been prosecuted federally.
    The murder of James Byrd is an important example in this regard. 
The collaboration between local, state and federal investigators was 
essential in that case; the FBI aided a relatively small jurisdiction 
in Texas with its forensic and laboratory expertise, while the U.S. 
Attorneys office assisted in the trial and death penalty phase 
regarding one of the defendants. We can offer much to these localities 
but, in most circumstances, only if we have jurisdiction in the first 
instance. The level of collaboration in Jasper was possible only 
because we had a colorable claim of federal jurisdiction in that 
matter.
    b. violent hate crimes based on sexual orientation, gender, or 
                               disability
    Under current law, section 245 provides no federal jurisdiction for 
violent attacks that occur because of sexual orientation, gender, or 
disability.
a. Sexual orientation
    From statistics gathered by the federal government and private 
organizations, we know that a significant number of hate crimes based 
on the sexual orientation of the victim are committed every year in 
this country. Data collected by the FBI pursuant to the Hate Crimes 
Statistics Act indicate that 1,102 bias incidents based on the sexual 
orientation of the victim were reported to local law enforcement 
agencies in 1997; that 1,256 such incidents were reported in 1996; 
1,019 such incidents were reported in 1995; and that 677 and 806 such 
incidents were reported in 1994 and 1993, respectively. The National 
Coalition of Anti-Violence Programs (NCAVP), a private organization 
that tracks bias incidents based on sexual orientation, reported 2,445 
such incidents in 1997; 2,529 in 1996; 2,395 in 1995; 2,064 in 1994; 
and 1,813 in 1993.
    Even the higher statistics reported by NCAVP may significantly 
understate the number of hate crimes based on sexual orientation that 
actually are committed in this country. Many victims of anti-lesbian 
and anti-gay incidents do not report the crimes to local law 
enforcement officials because they fear that their sexual orientation 
may be made public or they fear that they would receive an insensitive 
or hostile response or that they would be physically abused or 
otherwise mistreated. According to the NCAVP survey, 45 percent of 
those who reported hate crimes to the police in 1997 labeled their 
treatment by police as ``indifferent to hostile.''
    Despite the prevalence of violent hate crimes committed on the 
basis of sexual orientation, such crimes are not covered by 18 U.S.C. 
Sec. 245 unless there is an independent basis for federal jurisdiction, 
such as race-based bias. Accordingly, the federal government is 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.
b. Gender
    Although acts of violence committed against women traditionally 
have been viewed as ``personal attacks'' rather than as hate crimes, 
many people have come to understand that a significant number of women 
``are exposed to terror, brutality, serious injury, and even death 
because of their gender.'' \4\ 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 stated:
---------------------------------------------------------------------------
    \4\ Statement of Helen R. Neuborne, Executive Director, NOW Legal 
Defense and Education Fund, Women and Violence: Hearing Before the 
Senate Judiciary Committee, 101st Congress, 2nd Sess. 62 (1990).

          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. 103-138-91993) (quoting testimony of Prof. Burt 
Neuborne).

    VAWA provides private parties a broad civil remedy for violence 
against women motivated by gender-based bias.\5\ However, VAWA's two 
criminal provisions regarding violence against women provide extremely 
limited coverage. Specifically, VAWA's prohibition on interstate 
domestic violence, 18 U.S.C. Sec.  2261, is limited to violence against 
a defendant's ``spouse or intimate partner'' and requires that the 
defendant travel across a state line. VAWA's other criminal provision, 
18 U.S.C. Sec. 2262, prohibits the violation of a ``protection order'' 
if the defendant travels across state lines with the intent to engage 
in conduct that violates that order.
---------------------------------------------------------------------------
    \5\ See 42 U.S.C. Sec. 13981.
---------------------------------------------------------------------------
    The structure of VAWA's criminal provisions gives rise to at least 
two important concerns. First, because of VAWA's victim-based 
limitation--the requirement that the victim be a ``spouse or intimate 
partner''--VAWA does not give the Department of Justice adequate 
authority to address a significant number of violent gender-motivated 
crimes. Serial rapists, for example, fall outside the reach of VAWA's 
criminal provisions even if their crimes are clearly motivated by 
gender-based hate and even if they operate interstate. Second, because 
VAWA's criminal provisions contain no requirement that the violence be 
motivated by gender-based bias, a conviction under VAWA may not fully 
vindicate the interest in punishing gender-based crimes.
    The federal government should have jurisdiction to work together 
with state and local law enforcement officials in the investigation of 
violent gender-based hate crimes. And, in rare circumstances, the 
federal government should have jurisdiction to bring federal 
prosecutions aimed at vindicating the strong federal interest in 
combating the most heinous gender-based crimes of violence.\6\
---------------------------------------------------------------------------
    \6\ Although all 50 states have statutes prohibiting rape and other 
crimes typically committed against women, only 19 states and the 
District of Columbia have hate crimes statutes that include gender 
among the categories of prohibited bias motives.
---------------------------------------------------------------------------
    I want to emphasize that including gender in Sec. 245 would not 
result in the federalization of all sexual assaults or acts of domestic 
violence. The language of the bill itself, together with the manner in 
which the Department of Justice would interpret that language, would 
strictly limit federal investigations and prosecutions of violent 
gender-based hate crimes, especially since federal prosecutors will 
have to prove not only that the perpetrator committed the act, but also 
that the perpetrator did so because of gender-based bias. We would rely 
on this authority only in cases where federal jurisdiction is needed to 
achieve justice in a particular case. Just as with other categories of 
hate crimes, state and local authorities would continue to prosecute 
virtually all gender-motivated hate crimes.
    We would expect courts deciding gender-bias cases under an amended 
Sec. 245 to consider the same types of evidence that they consider in 
analogous contexts in which motive must be proved. This evidence could 
include: (i) statements of motive the defendant made before, during, 
or, after the offense that tend to indicate the defendant's motive; 
(ii) the absence of any evidence of an alternative motive; (iii) the 
defendant's use of epithets during the offense; (iv) other aspects of 
the offense itself, such as mutilation of the victim's genitals other 
acts of extreme violence, that may indicate hatred based on gender; and 
(v) other related or similar bias-motivated conduct of the defendant. 
As indicated elsewhere, we expect that most gender based crimes would 
continue to be prosecuted by state and local prosecutors.
c. Disability
    Congress has shown a sustained commitment over the past decade to 
the protection of persons with disabilities from discrimination based 
on their disabilities. With Section 504 of the Rehabilitation Act of 
1973, the 1988 amendments to the Fair Housing Act,\7\ and the Americans 
with Disabilities Act of 1990, Congress has extended civil rights 
protections to persons with disabilities in many traditional civil 
rights contexts.
---------------------------------------------------------------------------
    \7\ Congress amended the Fair Housing Act in 1988 to grant the 
Attorney General authority to prosecute those who use force or threats 
of force to interfere with the right of a person with a disability to 
obtain housing.
---------------------------------------------------------------------------
    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. The information we have 
available indicates that a significant number of hate crimes committed 
because of the victim's disability are not resolved satisfactorily at 
the state and local level. For example, in Denver in 1991. a paraplegic 
died from asphyxiation when a group of youths stuffed him upside down 
in a trash can. Calling the incident a ``cruel prank,'' local police 
declined to investigate the matter as a bias-related crime.
    The Department of Justice believes that the federal interest in 
working together with state and local officials in the investigation 
and prosecution of hate crimes based on disability is sufficiently 
strong to warrant amendment of 18 U.S.C. Sec. 245 to include such 
crimes when they result in bodily injury and when federal prosecution 
is consistent with the Commerce Clause.
                   c. federalization and jurisdiction
    The Department of Justice has carefully reviewed S. 622 and 
concludes that its enactment would neither result in a significant 
increase in federal hate crimes prosecutions nor impose an undue burden 
on federal law enforcement resources. The language of the bill itself, 
as well as the manner in which the Department would interpret that 
language, would ensure that the federal government would strictly limit 
its investigations and prosecutions of hate crimes--including those 
based on gender--to the cases where jurisdiction is needed to achieve 
justice in a particular case. The decision to use this authority would 
only be made after consultation with state and local officials.
    The Department's efforts under the proposed amendments to 18 U.S.C. 
Sec. 245 would be guided by Department-wide policies that would impose 
additional limitations on the cases prosecuted by the federal 
government. First, under the ``backstop policy'' that applies to all of 
the Department's criminal civil rights investigations, the Department 
works with state and local officials and would generally defer 
prosecution in the first instance to state and local law enforcement. 
Only in highly sensitive cases in which the federal interest in prompt 
federal investigation and prosecution outweighs the usual 
justifications of the backstop policy would the federal government take 
a more active role. Under this policy, we are available to aid local 
and state investigations as they pursue prosecutions, as we did in the 
Jasper case. Under this policy, we are also in a position to ensure 
that, in the event a state can not or will not vindicate the federal 
interest, we can pursue prosecutions independently. Second, under the 
Department's formal policy on dual and successive prosecutions, the 
Department would 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.''
    The express language of the bill also contains several important 
limiting principles. First, the bill requires proof that an offense was 
motivated by hatred based on race, color, national origin, religion, 
sexual orientation, gender, or disability; as it has in the past, this 
requirement would continue to limit the pool of potential federal cases 
to those in which the evidence of hate-based motivation is sufficient 
to distinguish them from ordinary state law cases. Second, the bill 
excludes misdemeanors and limits federal hate crimes based on sexual 
orientation, gender, or disability to those involving bodily injury 
(and a limited set of attempts to cause bodily injury); these 
limitations would narrow the set of newly federalized cases to truly 
serious offenses. Third, the bill's Commerce Clause element requires 
proof of nexus to interstate commerce in cases involving conduct based 
on bias covered by any of the newly protected categories; this 
requirement would limit federal jurisdiction in these categories to 
cases that implicate interstate interests. Finally, 18 U.S.C. Sec. 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.\8\ This statutory certification 
requirement, which would extend to all prosecutions authorized by S. 
622, would ensure that the Department's new areas of hate crimes 
jurisdiction would be asserted in a properly limited fashion.
---------------------------------------------------------------------------
    \8\ See 18 U.S.C. Sec. 245(a)(1).
---------------------------------------------------------------------------
    Finally, the Hate Crimes Prevention Act is fully consistent with 
constitutional requirements regarding the scope of Congressional 
powers. Proposed subsection (c)(1), the provision which essentially 
eliminates the ``federally protected activity'' requirement, is 
authorized by the Thirteenth Amendment, which permits Congress to 
regulate violent hate crimes motivated by race, color, religion or 
national origin. Proposed subsection (c)(2), which would prohibit the 
intentional infliction of bodily injury (or an attempt to inflict 
bodily injury through the use of fire, a firearm, or an explosive 
decide) on the basis of religion, gender, sexual orientation, or 
disability, requires proof of a Commerce Clause nexus as an element of 
the offense. Specifically, the government would have to prove ``that 
(i) in connection with the offense, 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 (ii) the offense is in or affects 
interstate or foreign commerce.'' The government would bear the burden 
at trial of proving the interstate commerce nexus beyond a reasonable 
doubt. We believe that the interstate commerce element contained in S. 
622 for hate crimes based on sexual orientation, gender, or disability 
would fully satisfy 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, the Hobbs Act, and the Racketeer 
Influenced and Corrupt Organizations Act (RICO). Accordingly, the 
interstate commerce element would ensure that hate crimes prosecutions 
brought under the new statute would not be mired in constitutional 
litigation concerning the scope of Congress' power.

                               Conclusion

    We must look at the root causes of hate crime. Intolerance often 
begins not with a violent act, but with a small indignity or bigoted 
remark. To move forward as one community, we must work against the 
stereotypes and prejudices that spawn these actions. We must foster 
understanding and respect in our homes and our neighborhoods, in our 
schools and on our college campuses.
    We also realize that legislation, while an important part of the 
solution, will not solve this problem alone. We must look at the root 
causes of hate crime. Intolerance often begins not with a violent act, 
but with a small indignity or bigoted remark. To move forward as one 
community, we must work against the stereotypes and prejudices that 
spawn these actions.
    Hate is learned. It can be unlearned. We must engage our schools in 
the crucial task of teaching our children moral values and social 
responsibility. Educators can play a vital role in preventing the 
development of the prejudice and stereotyping that leads to hate crime. 
I am pleased that the Department will be assisting a new partnership 
announced last month by the President in its efforts to develop a 
program for middle school students on tolerance and diversity. Also, 
over the past few years, through an interagency agreement, the 
Departments of Justice and Education helped publish the curriculum 
called ``Healing the Hate, a National Bias Crime Prevention Curriculum 
for Middle Schools'' and have conducted 3 regional training and 
technical assistance conferences throughout the nation. In addition to 
the regional trainings, we have provided Training and Technical 
Assistance to a dozen or more national juvenile prevention groups and 
organizations, including the National Council of Juvenile Court Judges 
and various local communities in which churches were burned.
    Where does hatred start? Hatred starts oftentimes in someone who 
feels alone, confused and unloved. I look at a young perpetrator and I 
know that at so many points along the way, we could have intervened and 
helped him take a better path. We have to invest in our children. We 
have to help them grow in strength, in positive values, and in respect 
and love for others.
    We also believe, however, that law enforcement has a significant 
role to play. The enactment of S. 622 would 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 race, color, national origin, religion, 
sexual orientation, gender, or disability of the victim. This bill is a 
thoughtful, measured response to a critical problem facing our Nation.
    I look forward to answering any questions that you might have.

    The Chairman. We are very pleased to welcome the members of 
the second panel, and I am very grateful to Senator Specter for 
being willing to chair the remainder of these hearings because 
of the pressures I have.
    First, we will hear from Ms. Judy Shepard, to whom I have 
already expressed my heartfelt condolences, as well as my 
deepest thanks for being willing to appear before us today.
    Then we will hear from Jeanine Pirro, who has served for 
more than 8 years as district attorney of Westchester County, 
in New York, and who, before that time, sat as a county court 
judge hearing criminal matters.
    We will then hear from Kenneth Brown, who for approximately 
10 years has served as a prosecutor in Wyoming's Albany County 
and whose office is now undertaking the prosecution of the 
terrible crime against Matthew Shepard.
    Mr. Robert Knight will follow. He is the senior director of 
cultural studies at the Family Research Council. Then we will 
hear from Prof. Burt Neuborne, of the New York University Law 
School, and then from Prof. Akhil Amar of Yale Law School.
    We are really pleased to welcome all of you here. We 
appreciate seeing a number of you again and we look forward to 
hearing every one of your testimonies here today. I 
particularly would like to stay for you, Ms. Shepard. I should 
have left a while ago, but I wanted to hear what you have to 
say, and then we will turn the chair over to Senator Specter.
    So we will turn to you, Ms. Shepard, and then maybe I can 
just make one comment and ask one question.

 PANEL CONSISTING OF JUDY SHEPARD, CASPER, WY; JEANINE FERRIS 
PIRRO, WESTCHESTER COUNTY DISTRICT ATTORNEY, WHITE PLAINS, NY; 
  KENNETH T. BROWN, CHIEF DEPUTY AND PROSECUTING ATTORNEY FOR 
   ALBANY COUNTY, LARAMIE, WY; ROBERT H. KNIGHT, DIRECTOR OF 
CULTURAL STUDIES, FAMILY RESEARCH COUNCIL, WASHINGTON, DC; BURT 
   NEUBORNE, JOHN NORTON POMEROY PROFESSOR OF LAW, NEW YORK 
 UNIVERSITY SCHOOL OF LAW, NEW YORK, NY; AND AKHIL REED AMAR, 
        PROFESSOR OF LAW, YALE LAW SCHOOL, NEW HAVEN, CT

                   STATEMENT OF JUDY SHEPARD

    Ms. Shepard. Thank you, Mr. Chairman, Senator Specter, 
other members of the committee. My name is Judy Shepard and I 
am from Casper, WY. My husband Dennis and I are currently 
living in Saudi Arabia, where he works for an oil company.
    Today, I sit before this committee to urge the passage of 
the Hate Crimes Prevention Act. My son Matthew was the victim 
of a brutal hate crime, and I believe this legislation is 
necessary to make sure no family again has to suffer like mine. 
I know this measure is not a cure-all and it won't stop all 
hate violence, but it will send the message that this senseless 
violence is unacceptable and un-American. It will let 
perpetrators of hate violence know their actions will be 
punished.
    To help you understand how this event has transformed and 
impacted our family, I would like to briefly tell you about 
Matt. You need to see him as we do to try and understand our 
loss. However, I am not sure we really understand it yet.
    Matt would be the first to say he was not a perfect child. 
He made mistakes, but those mistakes hurt no one but himself. 
He had such hopes for the future, his future. He was anxious 
for the next stage of his life to begin. Every new step meant 
new challenges, new friends, and new experiences. I love him 
more than I can express in this statement. He was my friend, my 
confidante, my consistent reminder of how good life can be, and 
how hurtful.
    On October 8, my husband and I were awakened in the middle 
of the night in Saudi Arabia by a telephone call no parent 
should ever have to receive. What we heard changed our lives 
forever. Our son, we were told, was in a coma after having been 
brutally attacked, in part because he was gay. Dennis and I 
flew back to the States and met up with our youngest son Logan.
    In Matt's room at the hospital, what we found was a 
motionless, unaware young man with his head swathed in 
bandages, his face covered with stitches, and tubes everywhere 
enabling the body to hold on to life. One of his eyes was 
partially open, but the twinkle of life was there no more.
    Logan at first refused to go into the room. He didn't want 
this picture to be the one that came to mind when he thought of 
Matt. However, he soon realized this was probably the last 
opportunity he would have to say goodbye. We could see him 
talking to Matt and stroking his face while holding his hand.
    On October 12, Matt was pronounced dead, and I can assure 
opponents of this legislation firsthand it was not words or 
thoughts, but violent actions that killed my son. Matt is no 
longer with us today because the men who killed him learned to 
hate. Somehow and somewhere, they received the message that the 
lives of gay people are not as worthy of respect, dignity and 
honor as the lives of other people. They were given the 
impression that society condoned, or at least was indifferent 
to violence against gay and lesbian Americans.
    Today, we have it within our power to send a very different 
message than the one received by the people who killed my son. 
It is time to stop living in denial and to address a real 
problem that is destroying families like mine and James Byrd 
Jr.'s and Billy Jack Gaither's and many others across America. 
It is time to pass the Hate Crimes Prevention Act.
    Opponents of this bill will say that the men who killed 
Matt will be punished with life in prison or even the death 
penalty. What more could a new law do, they ask. Maybe nothing 
in this case, but we will never know, will we? Perhaps these 
murderers would have gotten the message that this country does 
not tolerate hate-motivated violence. Maybe I would not have to 
be here today talking about how my son was savagely beaten, 
tied to a fence and left to die in freezing temperatures.
    I want to take a moment to offer my thanks to the dedicated 
law enforcement officers in Wyoming, in particular in Laramie, 
who worked so hard to ensure justice for my family. We will 
never forget your commitment, assistance and compassion in this 
most difficult time of our lives. But not every family who is 
victimized by hate violence will be as fortunate as ours. Law 
enforcement sometimes lacks personnel, resources, or the 
determination needed to properly investigate and prosecute hate 
crimes.
    The Hate Crimes Prevention Act would serve as a tool for 
law enforcement, allowing Federal assistance where it is most 
needed. It is cruel and unjust to tell suffering families who 
need Federal assistance that there is no place they can turn 
for help. Contrary to what some people may say, the Hate Crimes 
Prevention Act does not play one victim's life above another. 
It is the denial of justice that treats some victims and their 
families unequally.
    The Hate Crimes Prevention Act does not increase 
punishment, but it can help ensure all crimes are taken 
seriously, no matter who the victims are, what they look like, 
or where they live. The Hate Crimes Prevention Act will also 
expand the circumstances where Federal intervention can occur. 
Under current law, a hate crime can be federally prosecuted 
only if it takes place on Federal property or because the 
victim is exercising a federally protected right, such as 
enrolling in school or serving as a juror. These limitations 
can tie the hands of those investigating and prosecuting hate 
crimes, as well as deny families the assistance they need.
    While State and local authorities have, and will continue 
to play the primary role in the investigation and prosecution 
of hate violence, Federal jurisdiction would provide an 
important backstop to ensure that justice is achieved in every 
case. The Hate Crimes Prevention Act limits the Federal 
Government's jurisdiction to only the most serious violent 
crimes against people, not property.
    Today, I not only speak for myself, but for all the victims 
of hate crimes you will never hear about. Since 1991, hate 
crimes have nearly doubled. In 1997, the FBI's most recent 
reporting period, race-related hate crimes were by far the most 
common, representing nearly 60 percent of all cases. Hate 
crimes based on religion represented 17 percent of all cases. 
Hate crimes against gay, lesbian and bisexual Americans 
increased by 8 percent, or 14 percent of all hate crimes 
reported. We need to decide what kind of Nation we want to be, 
one that treats all people with dignity and respect or one that 
allows some people and their family members to be marginalized.
    I know personally that there is a hole in my existence. I 
will never again experience Matt's laugh, his wonderful hugs, 
his stories. I know Matt would be very disappointed in me if I 
gave up. He would be disappointed in all of us if we gave up.
    Today, we can make a powerful statement and help create a 
climate that fosters the emergence of a more tolerant America. 
On behalf of my family, I call on the Congress of the United 
States to pass the Hate Crimes Prevention Act without delay. If 
even one family could avoid getting that phone call in the 
middle of the night because of this legislation, then it would 
be well worth it.
    Thank you, Senators.
    The Chairman. Well, thank you, Ms. Shepard. I wanted to 
stay to hear your testimony. I wish I could stay for all of 
your testimonies, but I will read them and pay strict attention 
to them.
    I want to commend you for your strength and your courage in 
coming here today. You have endured with such grace and dignity 
the difficulties you have had. This is a trauma that no mother 
should ever have to face or to ensure. I can only say that your 
actions and your words on behalf of your son Matthew do him the 
greatest honor, so we are grateful to have you here.
    I am very concerned about this area, very concerned that we 
are not doing everything we should do. On the other hand, I am 
very concerned that we may be doing more than we should do, 
too; in other words, that the States are capable and do do a 
good job in these areas, and local governments. So it is a very 
tough set of questions for me, but I am going to do everything 
in my power to try and resolve them in the right way for all 
concerned.
    I am just very grateful to Senator Specter for being 
willing to chair the remainder of this hearing. I want to thank 
all of you for being here, but above all, you, Ms. Shepard. You 
have my deepest sympathy.
    Ms. Shepard. Thank you, Mr. Chairman.
    The Chairman. Before I leave, we will put Senator Leahy's 
statement in the record at the appropriate place.
    [The prepared statement of Senator Leahy follows:]

Prepared Statement of Hon. Patrick Leahy, a U.S. Senator From the State 
                               of Vermont

    I commend Senator Kennedy for his leadership on the ``Hate Crimes 
Prevention Act'' and I am proud to cosponsor it. This bill would amend 
the federal hate crimes statute to make it easier for federal law 
enforcement officials to investigate and prosecute cases of racial and 
religious violence. It would also focus the attention and resources of 
the federal government on the problem of hate crimes committed against 
people because of their sexual preference, gender, or disability.
    As the Ranking Member of the Judiciary Committee, I have worked 
with Senator Kennedy for some time on this issue and on this hearing, 
which was initially announced in March to be taking place in April. I 
regret that it was unnecessarily postponed, and I hope that we can make 
progress today on this important problem.
    Violent crime motivated by prejudice demands attention from all of 
us. It is not a new problem, but recent incidents of hate crimes have 
shocked the American conscience. The beating death of Matthew Shepard 
in Wyoming was one of those crimes, the dragging death of James Byrd in 
Texas was another. The recent murder of Billy Jack Gaither in Alabama 
appears to be yet another. And the singling out and brutal killing of 
Isaiah Shoals in Columbine High School in Littleton, Colorado may be 
another. These are sensational crimes, the ones that focus public 
attention. But there is a toll we are paying each year in other hate 
crimes that find less notoriety, but with, no less suffering for the 
victims and their families.
    It remains painfully clear that we as a nation still have serious 
work to do in protecting all Americans and ensuring equal rights for 
all our citizens. The answer to hate and bigotry must ultimately be 
found in increased respect and tolerance. But strengthening our federal 
hate crimes legislation is a step in the right direction. Bigotry and 
hatred are corrosive elements in any society, but especially in a 
country as diverse and open as ours. We need to make clear that a 
bigoted attack on one or some of us diminishes each of us, and it 
diminishes our nation. As a nation, we must say loudly and clearly that 
we will defend ourselves against such violence. We recently witnessed 
in the school violence in Colorado what hatred inspired violence can 
do.
    All Americans have the right to live, travel and gather where they 
choose. In the past we have responded as a nation to deter and to 
punish violent denials of civil rights. We have enacted federal laws to 
protect the civil rights of all of our citizens for more than 100 
years. This continues that great and honorable tradition.
    Several of us come to this issue with backgrounds in local law 
enforcement. We support local law enforcement and work for initiatives 
that assist law enforcement. It is in that vein that I support the Hate 
Crimes Prevention Act, which has received strong bipartisan support 
from state and local law enforcement organizations across the country.
    When the committee takes up the issue of hate crimes, one of the 
questions that must be addressed is whether the bill as drafted is 
sufficiently respectful of state and local law enforcement interests. I 
welcome such questions and believe that Congress should think carefully 
before federalizing prohibitions that already exist at the state level.
    To my mind, there is nothing questionable about the notion that 
hate crimes warrant federal attention. As evidenced by the national 
outrage at the Byrd, Shepard, Gaither and Schoals murders, hate crimes 
have a broader and more injurious impact on our national society than 
ordinary street crimes. The 1991 murder in the Crown Heights section of 
Brooklyn, New York, of an Hasidic Jew, Yankel Rosenbaum, by a youth 
later tried federally for violation of the hate crime law, showed that 
hate crimes may lead to civil unrest and even riots. This heightens the 
federal interest in such cases, warranting enhanced federal penalties, 
particularly if the state declines the case or does not adequately 
investigate or prosecute it.
    Beyond this, hate crimes may be committed by multiple offenders who 
belong to hate groups that operate across state lines. Criminal 
activity with substantial multi-state or international aspects raises 
federal interests and warrants federal enforcement attention.
    Current law already provides some measure of protection against 
excessive federalization by requiring the Attorney General to certify 
all prosecutions under the hate crimes statute as being ``in the public 
interest and necessary to secure substantial justice.'' We should be 
confident that this provision is sufficient to ensure restraint at the 
federal level under the broader hate crimes legislation that we 
introduce today. I look forward to examining that issue and considering 
ways to guard against unwarranted federal intrusions under this 
legislation. In the end, we should work on a bipartisan basis to ensure 
that the Hate Crimes Prevention Act operates as intended, strengthening 
federal Jurisdiction over hate crimes as a back-up, but not a 
substitute, for state and local law enforcement.
    Recently the Senate honored Rosa Parks with a medal for her role in 
the civil rights movement. Ms. Parks is now a resident of Michigan 
because, as Senator Levin explained, she and her family felt unsafe 
based on the harassment she experienced in another state. A lasting 
tribute to Rosa Parks would be not only to honor the past but to work 
to improve the present and future. The Senate should take action 
consummate with the great tradition of equality in the nation by 
passing the Hate Crime Prevention Act of 1999.

    The Chairman. We will turn to you, then, Ms. Pirro. I am 
sorry I have to leave, but I look forward to reading your 
testimony anyway.
    Senator Specter [presiding]. Before District Attorney Pirro 
starts to testify, just a comment or two, Ms. Shepard. I am 
very, very sorry to see what happened to your son.
    Ms. Shepard. Thank you, Senator.
    Senator Specter. It was a great tragedy, and I compliment 
you for stepping forward. I know it is very hard for you to 
come and to testify. That is obvious. But I think that what 
happened to your son could set an example for the country, 
really for the world. The brutality and the callousness of it 
and the tragedy of it has moved a lot of people, and your son's 
case and others could be a great impetus for getting this 
legislation passed.
    And make no mistake about it, when the Federal Government 
is involved, it is different, it is different. The Federal 
Government brings resources and power and a level of activity 
which is very, very significant. So we thank you.
    Ms. Shepard. Thank you, Senator.
    Senator Specter. District Attorney Pirro, we welcome you 
here. You have the second best job in government. The best job 
in government, from my experience, has been being an assistant 
district attorney.

               STATEMENT OF JEANINE FERRIS PIRRO

    Ms. Pirro. Well, I have always believed that I do have the 
best job in government. Thank you very much, Senator.
    Senator Specter. We look forward to your testimony. You may 
proceed.
    All statements will be made a part of the record, and we 
shall limit you to the 5 minutes. Thank you.
    Ms. Pirro. I was invited here today by both Republican and 
Democratic members of this committee, and I am grateful that 
Senators from both parties are willing to listen to and 
consider the perspective of a local prosecutor, albeit it one 
from a county with almost a million people. I am here as an 
individual, as a mother of two children, and as a law 
enforcement officer with a quarter century experience as a 
prosecutor and a judge.
    The vast majority of criminal prosecutions in this country 
are brought by local prosecutors. That is the way our 
government is structured and that is the way it should remain. 
I am pleased to note that counsel on both sides of the aisle 
indicate that regardless of any congressional action here, 
State and local officials should retain principal 
responsibility for hate crime investigations and prosecutions.
    As a prosecutor, I am concerned about the proliferation of 
companion Federal crimes in areas where State criminal statutes 
are sufficient. As a Republican, I am reluctant to endorse the 
creation in Washington a bigger, broader bureaucracy. And as an 
American, I am hesitant to delegate decisions basic to the 
security of my community to officials who are not directly 
accountable to that community. However, there are times when 
States are unable or unwilling to recognize and address 
fundamental issues vital to our society. And when that time 
comes, the Federal Government must act.
    Hate crime is a civil rights issue, and the proper role of 
the Federal Government in controlling this menace should mirror 
Federal action in other areas of civil rights. In the 1960's, 
there were States that were unwilling to guarantee equal rights 
to all Americans, and so citizens across our Nation responded 
by raising their voices in a cry for justice. People marched in 
small groups and large. They convened in local churches and 
synagogues, on college campuses, and they gathered on the great 
Mall here in Washington. Eventually, our Government declared 
that civil rights cannot be allowed to fall prey to bigotry and 
intolerance. Senator, we are still marching.
    Thirty-five years after Federal civil rights laws were 
enacted, men and women, young and old, constituents of every 
walk of life who reside in each of your States and in mine, 
continue to be targeted by those who breed hatred and 
dissension because of the color of their skin, their heritage, 
their religious affiliation, their disability, their gender, or 
perceived sexual orientation. And some of our States remain 
unmoved by this human tragedy.
    As district attorney of Westchester County, I have seen far 
too many violent crimes motivated by hatred and bigotry. I have 
seen the planting of explosive devices, assaults, and other 
hideous acts. In an incident police categorized as a hate 
crime, an African-American man was shot and killed over a 
parking space in a small community in Westchester.
    And I have also prosecuted and convicted those who have 
stabbed other persons simply because they were Hispanic, 
because they were Dominican, or because they were a member of a 
specific minority community. We have prosecuted cases against 
those who beat victims with a bat, who attack young men with 
box cutter knives, and who shoot others in the hand only 
because their victims were African-American.
    As president-elect of the New York State District Attorneys 
Association, together with New York Governor George Pataki, I 
have crusaded for a New York State law that would enhance the 
penalty for crimes of hatred. I have marched with local 
community members 2,000 strong, Christians and Jews, African-
Americans and caucasians, men and women of every segment of our 
society, shoulder to shoulder, to protest acts of hatred that 
destroy the very foundation of our community.
    The statistics on hate crimes are clear. States that have 
enacted comprehensive hate crime statutes provide prosecutors 
and police with the tools necessary to confront these 
criminals. Last year in New York, a State without comprehensive 
hate crime laws, anti-Semitic incidents were higher than in any 
other State in the Union. African-Americans remain the target 
of racially-motivated violence, notably the 38-year-old Albany 
woman shot in the neck as she stood outside a friend's house by 
two white youths prowling a black neighborhood looking to shoot 
an African-American. And as we all know, the torching of 
traditional black churches, a relic of decades past, is still 
with us.
    And criminal acts targeted at gays and lesbians continue to 
rise. Last year, a New York City man was verbally abused, 
chased and severely beaten by three assailants yelling antigay 
slurs. He was attacked with a bottle and ultimately lost his 
eye.
    There are those who argue that hate crimes legislation 
provides special rights for select victims. I can assure those 
naysayers that once a crime of violence takes place, no 
criminal legislation can restore to the victim what they have 
lost. We are all entitled to a sense of safety and security, 
and after a violent act the best that a victim can hope for is 
justice.
    But unlike an assault, an assault motivated by hatred 
targets and injures not only the intended victim, but also the 
entire community that has been terrorized by this act.
    Senator Specter. Ms. Pirro, could you summarize your 
statement at this point?
    Ms. Pirro. I maintain hope that Federal action on this 
pressing issue will encourage States like New York to enact 
legislation of their own in much the same way that States 
enacted civil rights legislation. And although I have no 
illusions that hate crime laws will end hatred, I believe that 
it is important for us to send a message that our society is 
founded on freedom and tolerance, not on violence and 
divisiveness.
    Thank you.
    Senator Specter. Thank you very much, DA Pirro. We very 
much appreciate your being here.
    We turn now to Kenneth Brown, chief deputy and prosecuting 
attorney for Albany County, Laramie, WY. Welcome, Mr. Brown, 
and the floor is yours.

                 STATEMENT OF KENNETH T. BROWN

    Mr. Brown. Thank you, Senator Specter, fellow witnesses and 
interested persons. Thank you for allowing me this opportunity. 
I would like to begin by stating that it is certainly an honor 
to follow Judy Shepard. She and her husband have had to 
persevere through an unimaginable tragedy, and have 
courageously and industriously heightened awareness of the 
terrible toll which hate crimes exact upon our Nation.
    As introduced, I am Ken Brown, chief deputy prosecutor in 
Laramie, WY. It is our office which has been and currently is 
involved in the prosecution of the men responsible for Matthew 
Shepard's death. Laramie is located in southeastern Wyoming and 
is approximately 25,000 in population. We are not a university 
town in Wyoming; we are the university town.
    I believe it is proper to outline the dynamics of our 
office. We are three attorneys in number. Two deputies assist 
the elected county attorney. We are on call 24 hours a day. 
Each attorney in our office handles felonies, misdemeanors, 
juvenile matters; provides civil advice to our Board of County 
Commissioners; and is basically prepared to address any legal 
situation which may develop in Albany County. There are no 
separate divisions, no departments, no administrative levels.
    We do not second-chair one another's trials because we 
simply cannot afford the time away from our own caseload. As 
such, we handle thousands of criminal matters over the course 
of a term of office. Several have been the focus of national 
attention, such as the Matthew Shepard case. I am proud to be a 
prosecutor in Albany County simply because Wyoming's people 
possess a sound work ethic, an enlightened view of fairness and 
justice, and truly embrace traditional American values. Hate is 
not a Wyoming value.
    There has been an extremely positive response within the 
community to the tragic death of Matthew Shepard. Wyoming's 
single greatest resource, its people, and specifically the 
citizens of Albany County, have stood solidly behind the 
prosecution of this matter and will continue to do so until a 
just disposition is achieved.
    However, a case of this magnitude and import puts a 
financial strain on our county like nothing else we have 
experienced. It is not extraordinary for a case like the 
Shepard matter which has a death penalty component to cost 
$100,000, $150,000, or more. With jury sequestration, huge 
witness costs and heightened 24-hour security, we easily exceed 
our annually anticipated budget 10-fold. Our county 
commissioners are left struggling to approve $80 vouchers. 
Bills can't be paid. Growth and development are hindered, if 
not reversed, in our county. The money simply isn't there. Yet, 
we cannot and will not compromise justice, given these 
financial constraints.
    As the Shepard matter progressed through stages of growing 
media focus, our office was contacted by numerous 
representatives of the Federal Government--the FBI, the U.S. 
Marshals Office, the Nation's Attorney General, and even our 
Chief Executive. We were wished well and told that we could 
count on the Federal Government for support, including 
financial support. Our county commissioners were told that 
money would be made available for these inherent trial 
expenses.
    By the fifth day of jury selection in the Russell Henderson 
trial, we had not received a dime. Federal personnel had 
stopped contacting our office, and the only thing that we did 
receive was some advice. The advice Janet Reno's office offered 
was that we wear blue shirts, as they appeared better on 
television cameras. We then asked the Federal Government when 
the money would be there and we were told that someone who had 
lacked the authority had made these representations to us.
    So, Senator, what Albany County needs is not a bill that 
promises us people or that discusses law enforcement officer 
training. Albany County has all the capable personnel necessary 
to successfully prosecute their own criminal offenses. Our 
local law enforcement agencies have a time-proven ability in 
providing courthouse security, witness transportation, and in 
keeping sequestered juries safe and free from outside 
influence.
    We don't need brand new players on our team, unfamiliar 
with the territory and at a huge additional expense to 
taxpayers. Our detectives and investigators offer a quality 
work product that simply cannot be enhanced by outsiders. And 
our prosecutors are, first and foremost, trial attorneys 
capable of handling any criminal violation of Wyoming statutes 
and bringing about successful prosecution of those cases.
    So save our taxpayer dollars; keep your teams of Federal 
bodies; save your education, as we have the ability to 
recognize statutory offenses. Instead, provide small 
prosecuting offices like ours with financial assistance. Give 
us the ability to remain tough in our posture against local 
crime in those cases where hate rears its insidious head. You 
can do nothing more to help prosecuting offices, law 
enforcement agencies, and small, decent communities like 
Laramie, WY, all across this Nation.
    Thank you.
    Senator Specter. Thank you very much, Mr. Brown.
    We turn now to Mr. Robert H. Knight, Senior Director of 
Cultural Studies, Family Research Council, here in Washington. 
Thank you for joining us, Mr. Knight, and the floor is yours.

                 STATEMENT OF ROBERT H. KNIGHT

    Mr. Knight. Thank you, Senator Specter. Family Research 
Council represents more than 450,000 families around the 
Nation, and I have also been told we speak for many other pro-
family groups particularly on this issue.
    I would like to point out right off the bat that we believe 
every violent crime should be prosecuted under the fullest 
extent of the law. Certainly, Mr. Shepard's crime should have 
been prosecuted under the fullest extent of the law, and 
apparently it was, and that is the way things should be. Mr. 
Byrd's crime in Texas, the same thing.
    I do find troubling that nobody has mentioned Littleton, 
CO, in this whole proceeding because under this proposed 
legislation some of the victims of the Littleton shootings 
would not have been covered because they were targeted because 
they were athletes. I think every murder is a hate crime. Every 
crime against a person should be prosecuted as fully as the 
next crime.
    In Wyoming, 8-year-old Kristen Lamb was abducted, raped, 
murdered and dumped in a landfill last July. Yet, according to 
Governor Jim Geringer, who appeared on CNN, her death didn't 
even make a blip in the national press. So we have to ask why. 
Well, her death was not a politically correct crime, as many 
crimes are not. Run-of-the-mill crime victims don't have a 
lobby. They don't have people to speak for them and say this 
crime is more horrendous than another crime.
    I am amazed at Senator Kennedy. He is not here to defend 
his remark, but he said that--and I think I am correct in 
saying this--he said that not every rape involves gender 
animus. You know, I can't imagine, if a woman were here who had 
been raped, she could take the Senator seriously. Every rape is 
a crime against all women. It is a crime against the community. 
It sends communities into sheer panic. When a child is snatched 
and abducted and molested, which happens thousands of times a 
year in this country, that is a crime against the whole 
community. Yet, that wouldn't be covered under this.
    The whole concept of hate crimes is flawed because it sets 
up special classes of victims afforded a higher level of 
government protection than others victimized by similar crimes. 
That violates the concept of equal protection. It politicizes 
criminal prosecutions.
    Mr. Holder said that he wanted the option of intervening in 
cases that he thought were particularly important and that the 
Federal Government ought to be able to do that. That means 
there would be great pressure on local law enforcement agencies 
to do cases that the Federal Government thought were important. 
That could take resources away from the run-of-the-mill crime 
victim who doesn't have a lobby behind him or her.
    It would vastly expand the power and jurisdiction of the 
Federal Government to intervene in local law enforcement 
matters. And, finally, it would have a chilling effect on 
freedom of speech by making unpopular ideas a basis for harsher 
treatment in criminal proceedings. Over half of the hate crimes 
in the last Justice Department report were categorized as 
simple assault or name calling. This bill basically would make 
name calling literally a Federal case.
    The definition of what constitutes a hate crime, while 
unclear is some instances, is very clear in others. One of the 
problems with this whole concept is the matter of blame. 
Following Family Research Council's ad campaign, which we 
called the Truth in Love Campaign, which ran with several other 
pro-family groups, that said that homosexuals are loved by God 
and have dignity because they are creations of God in his 
image, and therefore deserve the truth, the truth that can set 
them free--that was denounced as hateful rhetoric.
    In fact, observers like Katie Couric actually tied poor Mr. 
Shepard's killing to our ad campaign preaching the gospel of 
Jesus Christ. This disturbs us greatly. On the one hand, we are 
told that hate causes crime, and on the other hand we are told 
that spreading the gospel of Jesus Christ is a form of hate. 
Now, we are looking at a drive to silence opposition to 
homosexual activism. That is another reason we oppose this 
bill.
    We are not the only ones. The Washington Post has 
editorialized against this bill because they think it will 
create the concept of thought crime, the idea that the attitude 
of the perpetrator is more important than what actually happens 
to the victim. The Post is joined by William Raspberry, 
Clarence Page, Michael Kelly, Nat Hentoff, other liberal 
columnists who are waking up to the fact that, while well-
intentioned, because none of us wants hate crimes, none of us 
wants people abused, a law like this could be greatly abused. 
It could lead to charges of incitement against people who 
merely oppose homosexual activism.
    In Canada, it is already illegal to broadcast criticism of 
homosexuality over the airwaves. Now, they don't have a first 
amendment as we do, but I think the examples that have occurred 
in Canada are chilling. A mayor in Hamilton, ON, was told he 
was committing a hate crime because he wouldn't pronounce Gay 
Pride Week. He just said, gee, it is a blue-collar town I am 
the mayor of, and there are a lot of Catholics; they probably 
wouldn't appreciate it. They threatened him with a $5,000 fine. 
This is the kind of intimidation that we fear will occur in 
this country if legislation like this goes forward, because it 
never stops with one bill.
    The first Hate Crimes Act was restricted because the people 
who put it into effect didn't want the Federal Government to 
get out of hand. Now, people come back later and say, well, 
let's expand Federal powers this much more. Let's expand 
Federal power. That is the mantra, and I think that is 
something that should send a chill down every American's back.
    Finally, I would like to say that I would have liked to 
have had some victims here. We put them forward as witnesses, 
people who have been in jurisdictions where there are hate 
crimes laws and they have been used against those victims 
themselves. They couldn't be here. They weren't accepted, but 
if Mr. Hatch is true to his word that he may have more 
hearings, I hope we can put them forward.
    Thank you very much for your time.
    Senator Specter. Mr. Knight, when you say victims, whom do 
you have in mind, people who were the objects of hate crimes?
    Mr. Knight. Yes; Pastor Ralph Ovadal, in Madison, WI. He 
was rabbit-punched to the ground by a gay activist because he 
was holding a sign, ``Repent.'' And the police said, well, that 
is not a hate crime. After all, it wasn't committed against a 
homosexual. It was only a Christian pastor who got knocked to 
the ground.
    Another Christian in Madison uttered an epithet. He got in 
a shouting match with a homosexual activist. He was charged 
with a hate crime. So, in effect, in Madison they are more 
worried about words than actions, and that is how hate crimes 
can be selectively enforced.
    Senator Specter. So the victim you are talking about in the 
Madison case is someone who was charged with a hate crime?
    Mr. Knight. Well, two of them, one who was a victim of what 
you might term a hate crime whose perpetrator was not charged 
with such a hate crime because he didn't fall into one of the 
specially protected groups. See, the reason I am bringing that 
up if what concerns me most is selective enforcement, that we 
start balkanizing America by creating some groups that have 
higher levels of government protection than others.
    We want to crack down on all crime. We think Mr. Shepard 
and anyone who is targeted for their sexual orientation or any 
characteristic ought to have the full power of the law behind 
them. This bill only targets some groups and not others.
    Senator Specter. Thank you, Mr. Knight.
    [The prepared statement of Mr. Knight follows:]

                 Prepared Statement of Robert H. Knight

    Thank you for allowing me to testify on behalf of the Family 
Research Council and the more than 450,000 families we represent. We 
deplore criminal violence in any form, and believe that acts of 
violence against any person should be prosecuted to the full extent of 
the law. We also believe that Americans should continue to work 
diligently toward racial reconciliation.
    However, we strongly oppose S. 622, the Hate Crimes Prevention Act 
(HCPA), which is fundamentally flawed on numerous counts.
    It sets up special classes of victims, who are afforded a higher 
level of government protection than others victimized by similar 
crimes, violating the concept of equal protection.
    It would politicize criminal prosecutions, pressuring local 
agencies to devote more of their limited resources to cases that the 
federal government deems important.
    It would add nothing to the prosecution of real crimes of violence, 
vandalism, or property destruction, which are already covered by 
statutes in every state, and which should be punished to the full 
extent of the law.
    It would vastly expand the power and jurisdiction of the federal 
government to intervene in local law enforcement matters.
    It would have a chilling effect on free speech by making unpopular 
ideas a basis for harsher treatment in criminal proceedings. Over half 
of the so-called ``hate crimes'' in the last Justice Department report 
were categorized, by the department, as intimidation or simple assault, 
which do not necessarily involve anything more than words. This makes 
name-calling literally a federal case.
    The definition of what constitutes a ``hate crime,'' while clear in 
some instances, is very unclear in others.
    In recent weeks we have seen even the mildest statement of 
traditional sexual morality attacked as ``bigotry,'' ``hatred,'' ``gay-
bashing,'' ``intolerance,'' ``prejudice,'' and ``ignorance.'' 
Homosexual activists have even suggested that statements opposing 
homosexuality amount to inciting violence. Incitement, as you know, is 
not constitutionally protected speech. The aim seems to be to silence 
all opposition to acceptance of homosexuality.
    According to FBI statistics, ``hate crimes'' comprised less than 1/
10 of 1 percent of total violent and property crimes in 1997. In 1997, 
police agencies in 48 states and the District of Columbia reported 
``hate crimes'' at a rate of less than one case per law enforcement 
agency, the vast majority of which are already covered under existing 
federal law. The most frequently reported--nearly half--of those 
incidents (or ``crimes'') not covered, involve verbal intimidation, 
some of them no more than name-calling. But the backers of this Act 
want to give the federal government massive new powers based on the 
incidence of about a dozen incidents per state in a nation of 270 
million citizens.
    Leah Farish, an attorney specializing in civil rights issues, 
points out that ``hate crime'' statistics vary widely. She notes,

          Advocacy groups consistently overestimate--for their own 
        political purposes--the numbers of hate crime that are reported 
        by law enforcement.
          One such organization, the National Institute Against 
        Prejudice and Violence, estimates the victims of what it terms 
        ``ethnoviolence'' to be between 800,000 and one million 
        students annually. However, the FBI's own statistics on bias 
        incidents on school campuses show 555 in 1992 and 799 in 1996 
        [Source: DOJ 1992, p. 26; 1996, p. 27].
          The New York City Gay and Lesbian Anti-Violence Project 
        claims that in 1996 there were 18 anti-gay incidents in 
        Cleveland, 176 in El Paso, and 96 in Chicago. However, FBI 
        statistics reported only 2 in Cleveland, 1 in El Paso, and 6 in 
        Chicago [Source: DOJ 1996, pp. 53, 68, 31].

    At a press conference in January of 1998, Attorney General Janet 
Reno said, ``I see more anti-bias training and conflict resolution 
programs than ever before in our schools, in our communities, and I see 
them working.'' Miss Reno also admitted that in most cases, local and 
state agencies already have the authority to act on the problem--and 
are doing so.
    Still, she backs the HCPA, which grants the federal government far-
reaching new powers under the Interstate Commerce Clause. If someone 
calls a homosexual a name while making use of the facilities of 
interstate commerce, this bill could cover it. It is no wonder that the 
federal government has grown by leaps and bounds in recent years when 
the agents of centralized power employ such logic.
    The Washington Post has warned of the dangers of focusing on 
motivation rather than criminal acts. In a December 1, 1997, editorial, 
The Post contended, ``[T]he proposal would be largely redundant of 
state laws, getting federal prosecutors and agents involved in crimes 
that have only limited interstate dimensions.'' The Post further noted 
that ``[e]xpanding the federal ability to differentiate what are called 
hate-crime acts from analogous acts committed for other reasons is a 
mistake that Congress should refrain from making.''
    The Post's views are echoed by such liberal commentators as William 
Raspberry, Clarence Page, Michael Kelly and Nat Hentoff, as well as 
conservative columnists Jeff Jacoby, Maggie Gallagher, Tony Snow, Paul 
Craig Roberts and others.
    Michael Kelly writes,

          Of all the violence that has been done in this great 
        expansion of state authority over, and criminalization of, the 
        private behavior and thoughts of citizens, none is more serious 
        than that perpetuated by the hate-crime laws. Here, we are 
        truly in the realm of thought crimes. Hate-crime laws require 
        the state to treat one physical assault differently from the 
        way it would treat another--solely because the state has 
        decided that one motive for assaulting a person is more heinous 
        than another.

    Clarence Page writes,

          As an African-American, I belong to one of the groups 
        currently protected by hate crime legislation. Yet, hate crime 
        laws have not made me sleep better at night. I am more likely 
        to lay awake wondering how I can justify the noble intent of 
        such laws with the violence they inflict on the principles of 
        free speech and equal protection of the law.

    In effect, the HCPA creates thought crime, because the criminal 
acts themselves are already prosecutable. The Family Research Council 
believes that maintaining good order through swift prosecution and 
consistent, strict punishment of real crime is imperative. But justice 
must be impartial, without favored classes of victims or specially 
censured perpetrators. Creating special classes is inconsistent with 
the Constitution's l4th Amendment guarantee of equal protection under 
the law. Should the torture and murder of a child, for example, be 
prosecuted less vigorously than a similar crime committed against a 
homosexual?
    Furthermore, some in the media and in government have begun to 
interpret public opposition to normalizing homosexuality as ``hate.'' 
Homosexual activists have characterized even mild formulations of 
opposing views as a proximate cause of violence. As football great 
Reggie White and Senate Majority Leader Trent Lott learned last year, 
expressing the biblical view that homosexual activity is sinful is 
scarcely tolerated among some activists and media members, who equate 
it with yelling ``fire'' in a crowded theater.
    Last year's Truth in Love advertising campaign, in which former 
homosexuals gave the good news that all people are loved by God and 
have the hope of salvation and that homosexual behavior can be changed, 
was blamed for Matthew Shepard's murder, despite zero evidence that the 
perpetrators had ever seen the ads or been influenced by them in any 
way. The San Francisco City Supervisors went on record as directly 
blaming pro-family groups for Mr. Shepard's death. If an undiluted 
message of love is considered grounds for charges of complicity in a 
murder, then we have moved far down the road toward silencing anyone 
who holds to traditional morality. In Canada, it is already a federal 
offense to criticize homosexuality over the airwaves. The hate crimes 
bill paves the way in America for similar throttling of opinion.
    Homosexuals, like other citizens, should be protected to the full 
extent of the law. But that is not what this bill is about. Rather, the 
HCPA is the centerpiece of an effort to place homosexual behavior above 
criticism by portraying those who practice it as victims in need of 
special protections not afforded to other Americans. There simply is no 
credible evidence that the police and courts are allowing criminals to 
prey on homosexuals more than on any other citizens.
    America has nearly 20,000 homicides each year. In 1997, three of 
18,209 homicides were associated with ``sexual orientation--less than 
two-hundredths of 1 percent of total homicides. And this does not count 
the ``gay-on-gay'' killings that occur much more frequently.
    Family Research Council unequivocally condemns all violent crime, 
committed for any reason, including the fatal attack on Mr. Shepard in 
Wyoming. We believe that Matthew Shepard is as important and deserving 
of attention as any of the thousands of other Americans who are 
murdered every year. Wyoming does not have a ``hate crimes'' law, yet 
one of Mr. Shepard's killers had to cut a deal with state prosecutors 
to escape the death penalty in exchange for two life terms without the 
possibility of parole, while the other man charged faces the death 
penalty in his upcoming trial.
    There is evidence that ``hate crimes'' laws are not enforced 
equitably. In Madison, Wisconsin, Ralph Ovadal, a pastor and founder of 
Wisconsin Christians United, was physically attacked in 1996 while 
protesting a pro-homosexuality photo display at a public school. Ovadal 
and another man held two large signs--one read, ``Homosexuality Is 
Wrong'' and the other, ``Homosexuals: Repent or Perish.'' Another man 
grabbed one of the signs and hurried away. When Ovadal confronted the 
man about taking the signs, he punched Ovadal, knocking him to the 
ground. According to a medical report, the assault caused ``abrasions, 
contusions and an injured ankle.'' The assailant was never charged with 
a ``hate crime,'' despite the existence of a strong ``hate crime'' law 
on the books of Madison, a liberal college town. The attacker 
eventually bargained down a misdemeanor battery charge to an ordinance 
violation, comparable to a traffic ticket.
    In San Francisco in 1993, Pastor Chuck McIlhenny, whose home had 
been firebombed in 1990, called the city hate crimes unit when 
homosexual activists attacked a church. He was told that the Christians 
had their point of view, and the homosexual activists had theirs, and 
that they ``cancel each other out.'' Despite the destruction of 
property, physical assault of parishioners, and the disruption of a 
worship service, the police would not come to their aid. Apparently, 
some hate-crime victims are more important than others.
    Back to the national picture: If anti-bias programs are working, 
and offenses are already being handled adequately at the local and 
state levels, what real purpose does the Hate Crimes Prevention Act 
serve? Miss Reno revealed it when she announced that the Justice and 
Education Departments will distribute manuals to ``help teachers get 
young people to understand that they should celebrate their differences 
and not fight over them.'' With the emphasis on sexual ``orientation,'' 
this means that Jewish, Christian and Muslim children will be taught to 
``celebrate'' homosexuality. President Clinton announced a new 
nationwide school program as part of his support for the Hate Crimes 
Prevention Act. This amounts to federal officials interfering in local 
schools to ``re-educate'' children that their families' most deeply 
held beliefs amount to hateful bigotry. Already, in schools across the 
country, young children--even first graders--are being subjected to 
homosexual propaganda in the names of ``tolerance'' education and AIDS 
education.
    If we are to continue as free men and women, able to form opinions 
and speak our minds without fear, we cannot make attitudes or thoughts 
the subject of federal intervention and criminal prosecution. Instead, 
we should strive to ensure that the principle of ``equal justice under 
law'' truly applies equally to all Americans. The ``Hate Crimes 
Prevention Act of 1999'' may be well-intentioned, but its practical 
outcome is a step toward thought control, expanded governmental power, 
and tyranny masquerading as tolerance. We respectfully urge senators 
not to support S. 622.
          * * * * *
    Robert H. Knight, a former Los Angeles Times news editor and 
writer, is Senior Director for Cultural Studies at the Family Research 
Council. He is the author of The Age of Consent: The Rise of Relativism 
and the Corruption of Popular Culture (Dallas: Spence Publishing 
Company, 1998). Mr. Knight also wrote and directed The Children of 
Table 34, a documentary about Alfred C. Kinsey, and Coming Out of 
Homosexuality: Stories of Hope and Healing, which documents the 
testimonies of people who have left the homosexual lifestyle and been 
restored to heterosexuality.

    Senator Specter. We turn now to Prof. Burt Neuborne, New 
York University Law School. Welcome, Professor Neuborne. We 
look forward to your testimony.

                   STATEMENT OF BURT NEUBORNE

    Mr. Neuborne. Thank you, Senator, and thank you for this 
opportunity and the hearing and for the efforts of the members 
of the committee to deal with this problem.
    I am a professor of law at New York University and have 
practiced constitutional law for the last 35 years. I would 
like to speak this morning to two issues: one, my support for 
broadening the existing 245 by repealing the Federal activities 
requirement, which creates a technical problem to the 
prosecution of many of these heinous offenses and which, in my 
opinion, is not needed in order to provide Congress with the 
appropriate power in this area, and, second, to support the 
extended protection of Federal hate crimes to gays, women and 
the disabled who are targets of this type of abuse.
    If I could start for a moment by reminding us all about 
what role hate crimes play in this society and the special role 
that Federal hate crimes legislation can play, hate crime 
singles out a type of behavior, which is an attack on an 
individual solely because that individual belongs to a group, 
and most of the time a group that has been the subject of 
traditional prejudice in this society, singles that individual 
out for special violence solely because of their group 
activities.
    History teaches us that when you link violence to that type 
of hatred, it is the single most destabilizing threat to a 
civilized democratic society. And so I think Congress and the 
States have been quite correct in recognizing that hate crime 
poses a very special challenge to an effort to create and to 
maintain a civil society, and that it does three very important 
things.
    It may deter some of these crimes by enhancing the penalty 
for them, and most importantly enhancing the likelihood of 
apprehension by putting more resources into the law enforcement 
aspect of it. It enhances their punishment because it 
recognizes the enhanced harm and risk to the community that 
this type of behavior entails, and it is a very important form 
of public education, reinforcing both to the assailants and to 
the victims and to the community at large that this type of 
behavior cannot be tolerated in a civil society.
    And it also recognizes the need for special protection that 
members of despised groups can have. All of us run the risk of 
random violence, and random violence is a terrible thing that 
we should do all we can in this society to stamp out. Some 
people in America bear an additional risk, not simply the risk 
of random violence, but the risk that their membership in a 
group will lead a twisted soul to single them out for violence 
just because of their membership in the group. That is a 
justification and a need for the special protection that these 
laws provide.
    Now, what is the special role of Federal hate crime 
statutes? Senator Specter pointed out the traditional role, and 
if I could, I would characterize that as a role of antagonistic 
federalism. When you have local pockets of either bigotry or 
nonconcern that fail to deal with these issues in an important 
way, the Federal Government has historically stepped in and 
provided a backstop that essentially trumped the failure of 
local law enforcement agencies to take this seriously enough.
    I am very pleased to say that I think that in the hate 
crime area, the era of antagonistic federalism is drawing to an 
end and that we are entering something much more promising and 
much more hopeful, and that is an era of cooperative federalism 
where both the Federal Government and the State and local 
officials are committed, as Mr. Brown is clearly committed, to 
enforcing these laws in the most vigorous way.
    But that doesn't end the need for Federal action. If 
anything, it enhances it; it makes it more effective. It is in 
areas of cooperative federalism that the Federal Government's 
work in the past in criminal law enforcement has always been 
most effective. We shouldn't be saying let's not pass this 
because they are not dealing with antagonistic local units 
anymore. We should be applauding the fact that we are entering 
an era where the combined resources of all three levels of 
government can be brought to bear on this in a way that can 
finally end this scourge once and for all.
    There are four obvious practical things that cooperative 
federalism allows. First, it allows the creation of joint 
strike forces. We were able to move against the Mafia and 
against the drug trade most effectively when we harnessed the 
force of the Federal Government, the State governments and the 
local governments working together in joint enforcement and 
joint prosecution forces which effectively much of that 
material.
    We can deal with the problem of resource scarcity. As Mr. 
Brown pointed out, many areas in this country simply cannot 
carry out the type of complex prosecutions that are required in 
these cases. And in his setting, they knew who did it. In 
settings where they don't know who did it and you have to 
assemble not just a prosecution strike force but an arrest and 
apprehension strike force, that is entirely beyond the means of 
most small American communities. So this bill is crucial to be 
able to provide them with the resources in a cooperative way to 
be able to do the job effectively.
    Third, there are areas where there is a priority problem, 
where there are other things that need doing. This is a 
situation that would allow the Federal Government to step and 
say to the States, I know you are not hostile to this, but we 
have some resources for you that can allow you to do both, what 
you think is your high priority item and this as well.
    And, finally, this is an area where in those rare instances 
where States prosecute and fail and where a second prosecution 
appears necessary--this is an exception to the double jeopardy 
aspect of prosecution. There is some controversiality about it, 
but it is clearly the law and it allows a second bite at a 
prosecution apple in an area where the Attorney General says 
that it is necessary.
    It is particularly important to remember that this law can 
only be used if the Attorney General certifies that it is 
needed.
    Senator Specter. Professor Neuborne, could you summarize 
the balance of your testimony?
    Mr. Neuborne. Yes. The law can only be used if the Attorney 
General certifies its necessity. There is a clear Commerce 
Clause basis for it. The relationship between the Commerce 
Clause and bigotry is clearly met. If you get to the bottom of 
almost all prejudice, you find that what is there is a fear and 
a desire to protect status and a desire to intimidate 
newcomers, whether it is violence against Jews, whether it is 
violence against blacks. When you get to the bottom of it, you 
cannot have a free market in goods and services if people can 
be beaten because of fear that they are going to become 
economic competitors.
    This statute is clearly within Congress' power and I urge 
that you pass it as soon as possible.
    Senator Specter. Thank you very much, Professor Neuborne.
    [The prepared statement of Mr. Neuborne follows:]

                  Prepared Statement of Burt Neuborne

    Mr. Chairman and Members of the Committee: My name is Burt 
Neuborne. I am the John Norton Pomeroy Professor of Law at New York 
University School of Law, where I have taught Constitutional Law, 
Evidence and Federal Courts for twenty-five years. I have spent much of 
my career in the active defense of rights guaranteed by the United 
States Constitution. I served in various capacities on the legal staff 
of the American Civil Liberties Union for eleven years, most recently 
as National Legal Director from 1982-86. From 1988-92, I was a member 
of the New York City Human Rights Commission. I currently serve as 
Legal Director of the Brennan Center for Justice at NYU, a partnership 
between and among the family of Justice William Brennan, Jr., many of 
the law clerks who served Justice Brennan during his historic tenure on 
the Supreme Court, and the faculty of NYU School of Law, dedicated to 
honoring Justice Brennan's memory by seeking to protect the rights of 
the weakest members of society. I appear this morning on behalf of the 
NOW Legal Defense and Education Fund, the nation's oldest legal 
advocacy organization committed to protecting and advancing women's 
rights.
    Thank you for this opportunity to express my support for the 
proposed amendments to 18 U.S.C. 245 that: (1) delete the existing 
requirement that victims of a hate crime have been engaged in one of 
six narrowly defined ``federally protected activities'' in order to 
receive the protection of the federal hate crimes statute; and (2) 
extend the protection of the federal hate crimes statute to victims who 
have been singled out for violent assault because of their sexual 
orientation, gender, or disability.
    The artificial requirement in the current version of sec. 245 that 
a hate crimes victim must have been engaged in ``federally protected 
activity'' in order to qualify for federal hate crimes protection 
creates an unnecessary obstacle to efforts by local, state, and federal 
law enforcement agents to provide maximum protection against hate 
crimes that tear at the fabric of a civilized society. In my opinion, 
Congress possesses clear legislative authority to prohibit hate crimes 
generically, regardless of the nature of the victim's activities at the 
time of the crime.
    Moreover, the addition of sexual orientation, gender, and 
disability as protected categories responds to the sad reality that 
members of those groups remain at greater risk of violent assault 
because of their membership in a target group that attracts the hate of 
twisted individuals whose group hatred drives them to individual 
violence.
    I propose to begin with a brief overview of the role of federal 
hate crime legislation, especially in an era when many state and local 
law enforcement agencies appear to share Congress's concerns. I will 
then discuss Congress's power to enact hate crime legislation. I will 
conclude with a discussion of the wisdom of eliminating, the 
``federally protected activity'' requirement, and expanding the 
protected categories to include sexual orientation, gender, and 
disability.
i. a brief overview of the role of federal hate crime legislation in an 
                     era of cooperative federalism
    Legislation, no matter what the level of government, outlawing 
violent hate crime is designed to achieve three ends. First, by 
increasing the penalty associated with a violent hate crime, the 
criminal law seeks to deter twisted individuals from escalating their 
hatred of particular groups into violent behavior directed at members 
of those groups. By targeting violence motivated by hate, and 
subjecting it to more intense criminal penalties and a greater 
likelihood of apprehension and prosecution, the level of deterrence is 
increased.
    Second, by imposing heavier penalties on violence generated by 
group hate than on random violence, the criminal law recognizes both a 
higher level of moral revulsion toward violence caused by group hatred, 
and the increased damage to the fabric of civilized society associated 
with such violent bigotry. History tells us that the combination of 
irrational hatred of groups with violence directed at members of those 
groups is the single most destabilizing event in the erosion of 
democratic societies.
    Finally, by singling out individual violence caused by group 
hatred, and subjecting it to more intense criminal penalties, and a 
higher likelihood of arrest and prosecution, the criminal law serves 
its third function--that of educator. A critical function of the 
criminal law is to identify and reinforce the crucial moral judgments 
of the community. Hate crime legislation educates the general 
community, prospective assailants, and the victim communities, by 
asserting in the strongest terms known to our culture that hate crimes 
are profoundly abhorrent.
    In the years since numerous state and local governments have 
enacted variants of hate crime legislation, the statutes have fulfilled 
all three purposes. Law enforcement officials are virtually unanimous 
in supporting the increased deterrence, more precise moral 
condemnation, and more effective public education made possible by 
singling out individual violence caused by group hatred for special 
criminal consideration.
    If, as is the case, many state and local communities have enacted 
hated crimes legislation and, even in the absence of hate crimes 
legislation, appear to be committed to prosecuting hate crimes in an 
even-handed manner, what role does federal hate crimes legislation play 
in a regime of cooperative federalism? It is true, of course, that much 
of our federal criminal legislation in the civil rights area dates from 
an unfortunate era in our history when certain state and local 
officials were highly unlikely to invoke the criminal law against 
criminal behavior directed against despised minorities. In the absence 
of federal legislation, members of victim groups often lacked 
protection from criminal predators precisely because local law 
enforcement authorities were subject to the same bigotry as the 
perpetrators themselves. To the extent that pockets of bigotry remain 
ensconced in certain localities today, state or local law enforcement 
may, occasionally, be paralyzed by the same hatred that generated the 
hate crime. In those settings, federal hate crime legislation acts as a 
crucial backstop insuring that effective criminal protection is 
available to all, regardless of local prejudice.
    It would, however, be grossly unfair to local law enforcement 
officials to suggest that widespread reluctance exists in today's 
America to prosecute hate crimes. In fact, in my experience, while 
pockets of bigotry persist, state and local law enforcement officials 
generally share the revulsion to hate crime felt by every member of the 
Senate. What, then, is the role of federal hate crime legislation in 
such a regime of cooperative federalism? Unlike the role of federal 
legislation during an era of antagonistic federalism, when federal 
power is unleashed to compel local government to respect national 
values, today's federal hate crime statutes should be designed to 
reinforce the states and localities in carrying out a joint mission to 
prevent hatred directed at target groups from escalating into 
individual violence. Thus, for example, when inadequate local resources 
make it difficult, if not impossible, to deploy the substantial 
resources needed to investigate, arrest and prosecute a serious hate 
crime, the existence of a back-stop federal statute permits federal law 
enforcement authorities to reinforce state and local officials by 
offering the assistance of the FBI, or the resources of the United 
States Attorneys offices, to the beleaguered local officials. In 
settings where a pattern of hate crime is present, back-stop federal 
legislation makes possible the formation of Joint Strike Forces made up 
of local, state and federal officials designed to place maximum 
pressure on criminal offenders. In settings where state or local law 
fails to provide adequate criminal penalties, or where flaws in the 
local legal position render prosecution difficult, the existence of 
federal back-up legislation provides a valuable, perhaps crucial, 
additional law enforcement tool. Finally, in those rare settings where 
state prosecution has failed because of inadequate resources, or 
questionable effectiveness, the existence of back-up federal 
legislation provides the option of prosecution in a federal forum on 
the federal charges without violating the double jeopardy clause.
    In fact, when one views the sweep of federal criminal 
jurisprudence, federal criminal statutes work best, not in those 
unfortunate settings of antagonistic federalism, where the federal 
government is attempting to trump a local judgment, but in the context 
of cooperative federalism, where both the state and federal governments 
deploy their combined resources to achieve a common goal. It is 
precisely because we are in an era of cooperative federalism with 
respect to hate crime that it is such a good idea to fine-tune the 
federal backstop to assure that the full resources of every level of 
government can be brought to bear on the scourge of violence engendered 
by group hatred.
    The recent federal criminal legislation outlawing arson directed at 
churches is an excellent example of cooperative federalism at its best. 
Every level of government abhors the idea of arson directed at a house 
of worship. By enacting federal legislation in the area, Congress 
authorized federal officials to join in an inter-governmental effort to 
end church bombings once and for all. Every law enforcement official in 
the area, regardless of the level of the governmental employer, 
applauds the partnership made possible by the Congressional 
legislation, which has permitted the full resources of the nation to be 
directed to the elimination of a criminal threat to one of the most 
basic freedoms--freedom of worship. The same cooperative model is made 
possible by sec. 245 when criminals threaten the enjoyment of the right 
to be free from violence motivated by the race, color, religion, 
national origin, sexual orientation, gender, or disability of the 
victim.
  ii. congress possesses ample power to enact legislation making it a 
 federal crime to inflict violence on a victim because of the victim's 
                     membership in a despised group
    Congress possesses ample power to enact a federal hate crime 
statute. In an excess of caution, the current version of sec. 245 
limits federal hate crimes to settings in which the victim was engaged 
in one of six ``federally protected activities'' But such a narrow 
formulation creates a technical loophole into which an important 
prosecution can disappear. For example, is walking on the sidewalk free 
from harassment because of race participating in a federally protected 
activity (``freedom to travel'')? In fact, Congress's power in this 
area stems from two sources, neither of which, depend upon the victim's 
precise behavior at the time of the offense.
    Most traditionally, Congress possesses power under the Commerce 
Clause to regulate behavior that has a substantial and harmful effect 
on interstate commerce. Eg. Heart of Atlanta Motel, Inc. v. United 
States, 379 U.S. 241, 258 (1964).\1\ Of course, in settings where the 
regulated behavior does not obviously impact on interstate commerce, 
Congress is obliged to make specific findings explaining the link 
between the regulated behavior and interstate commerce. In the absence 
of such explicit Congressional findings, the Supreme Court has 
invalidated Congressional legislation when the regulated behavior 
(possessing firearms in school) did not appear, on its face, to 
exercise a substantial impact on interstate commerce. United States v. 
Lopez, 514 U.S. 549 (1995). Where, however, as here, the regulated 
behavior has an obvious link to interstate commerce, the decision 
whether to regulate remains solely within the discretion of Congress.
---------------------------------------------------------------------------
    \1\ See generally Wickard v. Filburn, 317 U.S. 111, 125 (1942); 
NLRB v. Jones & Laughlin Steel Corp., 301 U.S. 1, 36-37 (1937).
---------------------------------------------------------------------------
    As to the existing categories of victim currently listed in sec. 
245, it is clear beyond doubt that protecting their members from 
violence motivated by group hatred has a profound impact on interstate 
commerce. A nation committed to a national free market in goods and 
services cannot tolerate hatred-motivated violence that targets 
particular groups and impedes their ability to function in the 
workforce. In Edwards v. California, 314 U.S. 160 (1941), the Supreme 
Court recognized that the Commerce Clause assures the right of 
migration in search of a better life. Violence directed to members of a 
despised group threatens the Commerce Clause's guaranty of free 
migration in two ways. Violence directed against hated newcomers is 
often designed to impede the migration of groups seeking a better life, 
precisely because their migration threatens the economic interests of 
entrenched residents. Conversely, violence directed at hated minorities 
is often designed to force them to move, or to leave the workforce, 
precisely because their presence is a threat to the economic status of 
the entrenched majority. Given the historic link between violence 
directed against hated groups and economic status, Congress is 
undoubtedly well within its power in recognizing such hatred-motivated 
violence as a threat to the free market in goods and services that is 
the fundamental goal of the Commerce Clause. Nothing in Lopez 
interferes with Congress's important responsibility under the Commerce 
Clause to preserve the free flow of goods and services by acting to 
regulate private criminal behavior that threatens to single out members 
of hated groups and to remove them from the free market in labor by 
subjecting them to violence based on their membership in a hated group.
    As to the new categories of victims that are proposed to be added 
to sec. 245--sexual orientation, gender, and disability--Congress's 
power is even more clearly present, since an element of the crime 
requires proof of a Commerce Clause nexus. The nexus provision is 
similar to the link required in the prosecution of many federal crimes, 
such as unlawful possession of weapons, drugs, and gambling material. 
Indeed, if the provisions of the new version of sec. 245 fail to pass 
muster under the Commerce Clause, most of the federal criminal code is 
probably unconstitutional. Only an ideologue would attempt to stretch 
Lopez into a general repeal of virtually all federal crimes.\2\
---------------------------------------------------------------------------
    \2\ The recent divided (7-4) en banc decision of Fourth Circuit in 
Brzonkala v. Virginia Polytechnic and State University invalidating the 
Violence Against Women Act does not affect the power of Congress to 
enact the amended version of sec. 245. Unlike the Violence Against 
Women Act, the current legislation requires proof of an interstate 
commerce nexus as an element of the offense. I do not believe that a 
serious argument exists that Congress lacks the power to regulate 
conduct, when the conduct must be shown to affect interstate commerce.
---------------------------------------------------------------------------
    Second, although it is not necessary to discuss the issue at length 
because power under the Commerce Clause clearly exists, I believe that 
Congress possesses power under section 5 of the 14th Amendment to enact 
legislation designed to deter private persons from preventing members 
of persecuted groups from enjoying the equal status guaranteed by 
section 1 of the 14th Amendment. It is, of course true, that section 1 
talks in term of protection against ``state action''. But section 5's 
authorization is broader than section 1's self-executing scope. 
Otherwise, section 5 would be a mere redundancy. The Supreme Court has 
never been required to pass on the ultimate scope of Congress's power 
under section 5, since most exercises of Congress's power are also 
supported by the Commerce Clause. I believe that, at a minimum, section 
5 authorizes Congress to identify violent behavior that would make it 
impossible for the beneficiaries of section 1 to enjoy its benefits, 
and to take necessary steps to prevent the violent behavior. In any 
event, given the clear Commerce Clause power, I believe that no serious 
question of Congressional power is raised by the proposed amendments to 
sec. 245.\3\
---------------------------------------------------------------------------
    \3\ Moreover, I believe that the Fourth Circuit majority seriously 
misread Lopez in striking down the Violence Against Women Act. I note 
that eleven district courts have unanimously agreed with the four 
Fourth Circuit dissenters in upholding the Act's constitutionality.
---------------------------------------------------------------------------
    iii. no serious questions of policy argue against the proposed 
              expansion of the federal hate crimes statute
    The policy arguments leveled against the proposed amendments to 
sec. 245 do not appear persuasive.
    As an initial matter, no serious First Amendment issue is raised by 
the proposed amendments. Wisconsin v. Mitchell, 508 U.S. 476 (1993), 
makes it clear that the First Amendment does not protect violence 
merely because it is motivated by hatred. No principle of First 
Amendment law shields a violent offender against increased punishment 
because the crime was motivated by group hatred. In proving that group 
hatred motivated the attack, I believe that a trial court should be 
sensitive to issues of relevance in deciding whether to admit evidence 
concerning a defendant's First Amendment activities. In the brief that 
I authored in Wisconsin v. Mitchell, I urged the Supreme Court to 
recognize a First Amendment evidentiary privilege in hate crimes cases. 
The Court, instead, has relied upon a rule of relevance, and the good 
sense of the trial courts. In the years since Wisconsin v. Mitchell, 
the trial courts appear to have developed rules of relevance in hate 
crime cases that do not appear to pose serious First Amendment issues. 
There are, of course, occasional evidentiary mistakes, but, by and 
large, I am not persuaded that Congress can forge a better evidentiary 
standard that the case-by-case work of the trial courts.
    Nor would the proposed amendments federalize large categories of 
state criminal practice. The amendments include an important provision 
requiring certification by the Attorney General or her designee that 
``a prosecution by the United States is in the public interest and 
necessary to secure substantial justice.'' Such a provision assures 
that the back-stop federal legislation will play its appropriate role 
in a regime of cooperative federalism. The statute permits federal law 
enforcement resources to be immediately available at the local level, 
but assures that the actual prosecution will be the responsibility of 
state and local officials unless, after full consultation, the Attorney 
General believes that the back-stop federal statute is necessary. Far 
from posing a threat of federalization, the proposed amendments 
strengthen the ability of state and local authorities to deal 
effectively with hate crimes by making federal resources available to 
them, while holding federal prosecutions in reserve for those few 
situations where ``substantial justice'' requires them.
    Moreover, expansion of the protected categories to sexual 
orientation, gender and disability make eminently good sense. The ugly 
spectacle of gays being beaten because of homophobia must sicken any 
civilized human being. Given the lack of protection for gays in many 
communities, providing federal protection under the federal statute 
against violence motivated by homophobia is not merely a good idea--it 
is required by basic human decency.
    Although attacks against the disabled are less numerous, the legacy 
of the Nazi horror make clear that twisted souls can and do view 
disabled people as sub-human, and, therefore, fair game for violent 
abuse. Providing the disabled with an additional federal shield against 
violent abuse, to be used to assist local officials in providing 
protection, and as a back-stop when the Attorney General certifies that 
``substantial justice'' requires its use, appears to be a welcome step 
toward protection of an extremely vulnerable minority, with virtually 
no costs.
    Finally, a degree of federal criminal protection against gender-
motivated violence is long overdue. We know that a portion of the 
epidemic of violence aimed at women is traceable to hatred of women as 
a group. In many settings, state and local officials have also 
recognized the need to protect women against hate crime. In those 
settings, the amended federal statute will permit local officials to 
draw on federal law enforcement resources, and will create a back-stop 
federal statute for use in those settings where the Attorney General 
certifies its necessity. In many settings, however, local officials 
have not yet realized that violence against women is not merely a 
matter of personal aberration, but is often the result of a deep hatred 
of women as a group. In those settings, the federal statute will 
provide an invaluable protection for women who are targets of gender-
motivated violence.
    It is occasionally argued that recognition of a federal hate crime 
directed at gender motivated violence would sweep all assaults against 
women into the federal arena. But such an argument ignores the 
experience of the 22 states that have enacted gender-based hate crime 
statutes. In those states, every rape is not prosecuted as a hate 
crime. In order to evolve from an assault involving a woman to a hate 
crime, it is necessary to develop significant evidence that the 
defendant was motivated by hatred of women as a group. Where such 
evidence does not exist, assaults do not become hate crimes. Where, 
however, substantial evidence exists that a violent assault against a 
woman was caused by hatred of women as a group, it is crucial to deploy 
the criminal law in an effort to deter such violent behavior by 
singling it out for special attention. It would, I believe, be a 
callous act of indifference to refuse to grant women the extra 
protection that a federal hate crime statute might provide when we know 
that the mere existence of a federal statute (with an enhanced penalty 
and the greater likelihood of arrest and prosecution) might deter an 
act of violence by a twisted soul whose hatred of all women leads him 
to contemplate violence.

    Senator Specter. We turn now to our final witness, 
Professor Amar, of the Yale Law School. A very brief personal 
note. Over the entry of the Yale Law School, there are two 
stone etchings, two classrooms. In one depiction, there is a 
professor standing, gesturing, and obviously very vocal, and 
all the students are sleeping. And in the other stone etching, 
there is a professor who has his hand on his head, obviously 
very thoughtful, and all the students are up and very animated.
    Before you start your testimony, Professor Amar, which 
category are you in? [Laughter.]

                  STATEMENT OF AKHIL REED AMAR

    Mr. Amar. Can I take the fifth, Senator? [Laughter.]
    Senator Specter. You can, but there is another jurisdiction 
to prosecute you, I understand.
    Mr. Amar. Thank you very much, Senator, for allowing me to 
speak. I have obviously submitted some written testimony. I 
will just try to summarize very quickly.
    Senator Specter. We would appreciate that. Your full 
statement will be made a part of the record.
    Mr. Amar. I admire the symbolic aims of this statute, which 
are to affirm the equality of all American citizens regardless 
of race or religious or sexual orientation or gender or 
disability. I admire the biggest, I think, substantive idea of 
the statute, which is to create a State-Federal partnership, 
what my friend Burt Neuborne called cooperative federalism.
    I have some specific questions and concerns about some of 
the details and the strategy of the bill, and I would just 
invite the committee to think about whether there might be ways 
of accomplishing those goals even better than the current 
version. And this is, I think, very much in the spirit of what 
Chairman Hatch said in his opening remarks. So let me just 
identify the questions and concerns.
    First is a data question. There are at least three 
different ways of having an antihate crime strategy. One is 
vigorous, even-handed enforcement of ordinary rules of assault, 
murder, rape, and so on. An advantage of that is it doesn't 
generate any backlash about special rights for special victims 
and disadvantages that may not symbolically affirm the real 
importance to the larger community of certain disadvantaged 
groups.
    A second strategy is sentence enhancement, where you have 
ordinary laws of murder, rape and robbery, but then at the 
sentencing stage we take into account bigotry and say that 
makes the crime much more reprehensible, creates more harm, and 
so we sanction it more severely.
    A third is an explicit hate crime statute where that 
bigotry isn't a specific element of the offense. That has got 
the advantage of heightened symbolism, but possibly the 
disadvantage of having to prove bigotry beyond reasonable doubt 
to a jury, which you don't have in the sentence enhancement 
model.
    So you have at least three different models at the State 
level, and one data question to ask is what is the experience 
of the States with those three different approaches. I am not 
sure that we have analyzed that data in order to figure out 
what strategy actually will work the best.
    Furthermore, in addition to figuring out what strategy 
might work the best at the State level, if we were trying to 
come up with a model statute for States to adopt, I think it is 
relevant to see where the States are failing to identify the 
precise size and shape of possible Federal intervention, given 
that many thoughtful citizens and Senators have, in general, a 
preference for decentralized solutions where possible.
    And, again, an analysis of this data might be very helpful. 
If there really are systematic areas where States are falling 
down, we could have an even broader consensus, I would hope, in 
support of Federal crimes and have 95 Senators rather than 
maybe 60 Senators on board, and that is a more emphatic 
symbolic statement about what we as Americans hold in common--
the equality of all, regardless of race, religion, sexual 
orientation, sex, disability, and so on.
    So one set of questions is how we analyze the data at the 
State level, and a concern that if we rush in too quickly 
sometimes we can make a problem worse. Some people think that 
that might have been the case with the crack/powder distinction 
and what this Congress did a decade ago.
    Then there are some constitutional concerns, and they are 
created by court doctrine. I don't want to suggest that courts 
would clearly invalidate this. I just want to suggest that 
there are some risks, and the risk, even if some judges vote 
against it, not a majority even, is it weakens some of the 
symbolic force of a statute.
    One set of problems is created by the recent Supreme Court 
decision in City of Boerne, invalidating a law that this Senate 
passed, 97 to 3, the Religious Freedom Restoration Act, that 
signals a narrower understanding of Congress' power under the 
Reconstruction amendments. I myself am a critic of the Boerne 
decision. I think it wrongly restricted the broad powers that 
this Congress is supposed to have under the Reconstruction 
amendments. But you need to take that into account, I think.
    That betokens at least a possible concern about the 
religion language in that prong of the statute that doesn't 
have a Commerce Clause trigger which goes beyond cases like 
Jones v. Alfred Mayer, and I don't know whether the Court is 
going to go beyond that.
    As to the Commerce Clause, of course, there is the Lopez 
case, invalidating another recent statute that this Congress 
passed. Senator Kennedy's bill, S. 622, has a Commerce Clause 
trigger, and so I think it is much stronger than the statute in 
Lopez. But I think there are still some possible concerns about 
the precise nexus between interstate commerce and what the 
statute targets.
    Some possible fairness concerns, double jeopardy concerns. 
If the State and Federal governments really are working 
cooperatively and as a team, and if the States prosecute and 
there is an acquittal, some possible fairness concerns if the 
Federal Government, which were teammates in the whole process, 
then comes and tries to whack the defendant a second time.
    So, in a nutshell, my suggestions are the following as 
possible additions or alternatives. Commission a careful 
analysis of the existing hate crime data. Consider adoption of 
a model State statute that States should be encouraged to 
adopt, and you could even have some pilot programs that States 
would be involved in to see which ones work better.
    Think about a Federal civil right of action, in addition to 
or instead of the Federal criminal right of action. That might 
solve some of the double jeopardy fairness concerns, and even 
commerce concerns. Make more explicit findings about the link 
to interstate commerce. Invoke the Citizenship Clause of the 
14th amendment, as well as the 13th amendment. What you are 
trying to do is affirm the equal citizenship of all citizens.
    And here I conclude. I have even suggested some ways of 
strengthening the symbolic language of the statute, which is 
about the Federal role in affirming the equal citizenship of 
all. So distinctions based on birth, like sex or sexual 
orientation or race, should play no role in American 
citizenship.
    Thank you, Senator.
    [The prepared statement of Mr. Amar follows:]

                 Prepared Statement of Akhil Reed Amar

    My name is Akhil Reed Amar. I hold the Southmayd Chair at Yale Law 
School, where I teach and write on constitutional law, federal 
jurisdiction, and criminal procedure. I am grateful to be here to 
discuss how this Congress can help prevent hate crimes, and thereby 
affirm the equality of all Americans, regardless of race, religion, 
sex, sexual orientation, or disability. In analyzing this important 
topic--which implicates myriad issues of both constitutional law and 
public policy--I have organized my thoughts around Senator Kennedy's 
Bill, S. 622. I admire the goals of the Bill, and I share its vision of 
equality. I do, however, have some questions and concerns about some of 
its specific provisions, and about its general strategy. Also, I will 
try to identify some other legislative strategies that this Committee 
might consider to better implement the aims of the Bill.
    I admire the aims of the Bill. The Bill seeks to prevent hate 
crimes when possible and to punish them when they nonetheless occur. 
The Bill tries to achieve these aims via a close state-federal 
``partnership'' in which federal jurisdiction ``supplements'' state 
prosecutions, and the federal government offers ``assistance to 
States.'' (Sec. 2, paras. 10, 11.) The Bill appropriately acknowledges 
that states ``are now and will continue to be responsible for the 
prosecuting the overwhelming majority of violent crimes in the United 
States, including violent crimes motivated by bias.'' (Sec. 2, para. 9, 
emphasis added.) Symbolically, I understand the Bill as an effort to 
stand with the victims of hate crime and against those who perpetrate 
or pooh-pooh these crimes. I see the Bill as a noble effort to affirm 
the national government's commitment to equality, and to express its 
emphatic disapproval of those who harm others simply because of who the 
victims are--because, that is, of the victims' race, religion, sex, 
orientation, or disability.
    Given that most of the fight against hate crimes will be waged by 
states, an important part of the Bill is its symbolism, placing the 
federal government firmly on record against those who, for example, 
kill homosexuals or Jews and those who apologize for such unspeakable 
conduct by blaming the victims--``they asked for it.'' And 
substantively, the most important part of the Bill is the federal 
assistance it promises to states; the federal crimes it creates are 
likely to be less important substantively because--as the Bill itself 
admits--the vast majority of prosecutions will continue to be at the 
state level. With this understanding of the Bill, I now turn to my 
questions and concerns.
                          i. the data question
    Substantively, what particular strategy is most likely to work in 
actually preventing violent hate crimes? One strategy is simply to 
vigorously prosecute hate criminals using ordinary laws of murder, 
assault, and so on. This is indeed an anti-hate crimes strategy; it 
stands against a look-the-other way world where prosecutors and judges 
do not take hate crime as seriously as other crime. In a look-the-
other-way world, bigotry becomes a kind of excuse or mitigation: a 
``queer-basher'' is treated more leniently than other thugs because 
``he couldn't help being repulsed'' or because ``the victim asked for 
it by flaunting his identity.'' A second strategy is to use ordinary 
laws of murder, assault, and so on, but to treat bigotry as a 
sentencing enhancer justifying more severe punishment because the 
bigotry in effect compounds the crime and makes it more reprehensible. 
A third strategy is to enact laws specifying bigotry as a specific 
offense element that must be charged in the indictment and proved 
beyond reasonable doubt to the jury.
    Which of these strategies is most likely to be effective? This 
question implicates federalism--one obvious way to try to answer this 
question would be to analyze the actual practices of different states 
that have pursued different strategies. I believe that state data have 
been collected pursuant to the Hate Crime Statistics Act. Has this data 
been systematically analyzed? I have not yet seen any detailed 
analysis, and, in keeping with Chairman Hatch's remarks, I think 
careful analysis would be useful. Suppose the data suggests that 
sentencing enhancement actually works better at preventing hate crimes 
than specific new hate crime offenses (perhaps because bigotry need not 
be formally charged and proved)? Suppose simple vigorous and even-
handed enforcement worked best of all (perhaps because it avoids the 
backlash generated by the perception of ``special rights'' for special 
classes)?
    Data collection is desirable for a second reason. Analyzing state 
data will not only help each individual state figure out how best to 
combat hate crimes, it will also help illuminate whether and to what 
extent there is a need to add a new federal crime to the books. For 
example, suppose the data suggest that the real problem is not state 
bigotry or indifference but rather inadequate resources to deal with 
certain special problems raised by hate crimes (say, because the 
average hate criminal has plotted his crime with more care and is 
harder to catch than the average nonhate criminal). In this case, the 
best solution might be increased federal assistance rather than 
enhanced federal jurisdiction that might reduce the sense of 
accountability of local authorities.
    In addition, many Senators and citizens of good faith ordinarily 
start with a presumption in favor of state as opposed to federal 
solutions. Such Americans could well be brought to support new federal 
crimes if the data actually shows that states are not doing their job. 
Data here could thus help forge a broader consensus than might 
currently exist. Part of the goal of the Bill, I think, should be to 
muster an overwhelming majority of Senators to demonstrate to those who 
hate just how wide and deep is the consensus against them.
    One objection to data collection is that people are dying now, and 
this Congress needs to do something. But surely, this Congress needs to 
do the right thing, and new federal crimes are not always the best 
answer. A decade ago, inner cities were being ravaged by crack, and 
this Congress decided it had to do something. It dramatically increased 
the federal penalty for crack compared to powder cocaine. Many leaders 
of the Black Caucus supported this effort to do something to save black 
inner city children from the crack plague. Today, many of these same 
leaders now think that this Congressional approach was mistaken-and 
indeed, may have made racial problems worse. Another objection to data 
collection is that--substantive efficacy aside--America needs a strong 
symbolic statement from Congress now, and this symbolic statement can't 
wait. I agree, and would propose that the Committee consider an even 
stronger symbolic statement than S. 622 currently contains. In 
addition, a strong commitment of federal assistance today will put the 
federal government's money where its mouth is, and thus send a very 
strong signal.
                      ii. constitutional concerns
    The final reason for care before defining new federal crimes is 
that such new crimes might face tough sledding in the federal courts. 
If these crimes were to be invalidated by courts, it would be a big 
symbolic defeat for the equality vision-even if the grounds for 
invalidation were rooted in ``technical'' federalism objections. Even 
if these new crimes survived court challenge, they might not do so 
easily and unanimously. The very fact of judicial dissent--or of a 
large bloc Congressional votes against the Bill itself--might weaken 
the symbolic strength of the Bill, as compared with a Bill that 
virtually all Senators and judges could easily accept as a strong 
affirmation of our common ground as Americans. This takes me to my next 
set of questions involving judicial doctrines of federalism and general 
constitutional concerns.
A. The Boerne problem
    Section 4 creates a new federal crime for violent hate crimes based 
on ``race, color, religion, or national origin.'' This part of Section 
4(c)(1) has no explicit requirement that the crime be linked to 
interstate commerce, and it regulates criminal activity that is not 
itself commercial. Under the Supreme Court's 1995 Lopez \1\ decision, 
this prong of Section 4 will be hard to defend in court under 
Congress's commerce clause power. The most sturdy argument to uphold 
this prong in court derives from Congress's power under Section 2 of 
the Thirteenth Amendment. Section 2, paragraph 8 of S. 622 pointedly 
invokes this authority, by finding that ``violence motivated by bias 
that is a relic of slavery can constitute badges and incidents of 
slavery.'' I applaud Congress's explicit effort to invoke the 
Thirteenth Amendment. Indeed, in an article on hate crime that I 
published eight years ago in the Harvard Law Review, I suggested that 
drafters of anti-hate crimes statutes should ``state explicitly that 
the ordinance is designed to implement the Thirteenth Amendment by 
eliminating various badges and incidents of slavery and caste-based 
subordination.\2\
---------------------------------------------------------------------------
    \1\ United States v. Lopez, 115 S.Ct. 1624 (1995) (striking down a 
federal criminal offense created by the Gun-Free Schools Act of 1990 as 
beyond the proper reach of Congressional power under the commerce 
clause).
    \2\ Akhil Reed Amar, The Case of the Missing Amendments: R.A.V. v. 
City of St. Paul, 106 Harv. L. Rev. 124, 160 n. 187 (199 1).
---------------------------------------------------------------------------
    But there are problems. First, as that article mentioned,\3\ it 
might be difficult to bring religious as opposed to racial bigotry 
under the canopy of the Thirteenth Amendment. In the landmark 1968 case 
of Jones v. Alfred Mayer, the Supreme Court upheld a law regulating 
private race discrimination under the Thirteenth Amendment but 
pointedly noted that. ``the statute in this case deals only with racial 
discrimination and does not address itself to discrimination on grounds 
of religion or national origin.'' \4\ It gets worse. Two years ago, the 
Supreme Court decided the City of Boerne v. Flores \5\ case, and 
invalidated the Religious Freedom Restoration Act, which this Senate 
passed by a 97 to 3 vote in 1993. Boerne offered a narrow reading--in 
my view, an inappropriately narrow reading--of this Congress's power 
under Section 5 of the Fourteenth Amendment. Boerne said that under 
Section 5 of the Fourteenth Amendment, Congress could only ``enforce'' 
rights that judges would recognize under Section 1 of the Fourteenth 
Amendment. Although the Court said very little about the Thirteenth 
Amendment, and not a word about the Jones case, the logic of Boerne is 
ominous. If Section 5 of the Fourteenth is to be strictly construed, 
why not Section 2 of the Thirteenth, which is written in almost 
identical language? Although Boerne did not address this issue in 
detail, it does suggest that the current Court may be disinclined to 
extend Jones even an inch more. (It further suggests that this Court is 
not particularly deferential to this Congress, a point confirmed by the 
very great number of recent Congressional statutes that the Court has 
invalidated in the last decade.)
---------------------------------------------------------------------------
    \3\ See id. at 159.
    \4\ Jones v. Alfred H. Mayer Co., 392 U.S. 409,413 (1968).
    \5\ 117 S. Ct. 2157 (1997).
---------------------------------------------------------------------------
    I am a critic of the Court's decision in Boerne, and indeed have 
assailed it in print (in the February, 1999 issue of the Harvard Law 
Review).\6\ I think the Boerne Court clearly misconstrued the letter 
and spirit of the Reconstruction Amendments, which were designed to 
give this body--the Congress of the United States--broad power to 
protect the rights of all Americans to liberty and equality. I further 
think that this Congress should have power to reach certain private 
action under the first sentence of the Fourteenth Amendment--the 
citizenship clause, which has no state action requirement. But the 
current Court seems to think otherwise. Thus it is unclear whether the 
religion language of proposed section (c)(1) would pass judicial 
muster.
---------------------------------------------------------------------------
    \6\ See Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 
821-27 (1999).
---------------------------------------------------------------------------
B. The Lopez problem
    Perhaps in anticipation of this problem, Section (c)(2) follows a 
different strategy, defining a new federal hate crime involving both 
violence on the basis of ``religion, gender, sexual orientation, or 
disability'' and also a link to interstate or foreign commerce. The 
idea here is that even if the Thirteenth and Fourteenth Amendments are 
not enough to uphold federal power, the commerce clause is broad 
enough. (I also note that ``religion'' appears in both (c)(1) and 
(c)(2).)
    But once again, there are problems. Unlike the statute struck down 
by the 1995 Lopez case, Section (c)(2) has an explicit commerce 
trigger. But it seeks to regulate criminal conduct that is not itself 
particularly commercial. And the Lopez decision signals a stricter 
understanding of the commerce clause than was once dominant. How much 
stricter is uncertain. Lopez was a 5-4 case, and Justices Kennedy and 
O'Connor seemed to suggest in a concurrence that careful Congressional 
findings about impact on interstate commerce could make a 
difference.\7\ At this point, S. 622 makes some findings about 
commercial impact (Sec. 2, paras. 4-7), but in rather conclusory terms, 
a court might think. Is there specific data about how often bias 
targets actually move across state lines to avoid their stalkers, or 
how often these stalkers actually cross state lines in search of their 
prey?
---------------------------------------------------------------------------
    \7\ United States v. Lopez, 115 S.Ct. 1624, 1642 (1995) (Kennedy, 
J. concurring, joined by O'Connor, J.) (calling for ``a stronger 
connection or identification with commercial concerns'') (emphasis 
added).
---------------------------------------------------------------------------
    But the more Congress tries to stress that it is really concerned 
about interstate commerce the more the symbolic message of an anti-hate 
Bill is blunted. Is this really a Bill about using a telephone or 
travelling on a highway, or is it instead simply about hate?
    The combination of Lopez and Boerne is more powerful than each case 
in isolation. In tandem, these two cases are like two claws of a pincer 
squeezing Congressional power--and anyone who doubts the strength of 
this one-two combination should consult a recent Fourth Circuit case, 
Brzonkala v. Virginia Polytechnic Institute, invalidating a portion of 
the 1994 Violence Against Women Act on the basis of Boerne and 
Lopez.\8\ This Fourth Circuit opinion may or may not be upheld if and 
when the Supreme Court reaches the issue involved in that case. But it 
is a straw in the wind suggesting some of the judicial difficulties the 
current version of S. 622 might face.
---------------------------------------------------------------------------
    \8\ See Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 ( 
4th Cir. 1999) (en banc).
---------------------------------------------------------------------------
C. The double jeopardy problem
    Even if courts were to dismiss these possible constitutional 
objections and uphold the new federal crimes defined by Section 4, a 
final problem would arise. Is it really fair to subject a private 
citizen to federal prosecution after, say, he has been acquitted in a 
state prosecution? Court doctrine allows for prosecution by dual 
sovereigns,\9\ but this doctrine is hard to explain in situations where 
both governments are working in close partnership to investigate and 
prosecute a given crime. If the state cannot get two bites at the 
apple, and neither can the feds, why should the two governments acting 
as a team get two bites? \10\
---------------------------------------------------------------------------
    \9\ See, e.g., Bartkus v. Illinois, 359 U.S. 121 (1959) (upholding 
state prosecution for bank robbery following a federal acquittal for 
robbing the same federally insured bank).
    \10\ See generally Daniel A. Braun, Praying to False Sovereigns: 
The Rule Permitting Successive Prosecutions in the Age of Cooperative 
Federalism, 20 Am. J. Crim. L. 1 (1992).
---------------------------------------------------------------------------
    In a 1995 Columbia Law Review article on the Double Jeopardy issues 
raised by the Rodney King case,\11\ Jon Marcus (now a federal 
prosecutor) and I argued that from a civil liberties perspective, it 
makes a good deal of sense to allow federal prosecution of state 
officials who abuse the rights of private citizens. Even after state 
officials have been acquitted in state court on state criminal 
charges--as were the Los Angeles officers in the Rodney King case--
federal criminal prosecution in federal court for federal offenses 
might well appropriate, we argued. State courts and state prosecutors 
might predictably go easy on state officials, and these officials wield 
special and awesome powers over the rest of us. To protect the rights 
of ordinary citizens, it seems fair to hold abusive officials to a very 
high standard. But private citizens, we argued, were very different, 
and double prosecution of them in situations where state and federal 
governments are acting as a team seems unfair. (A separation of powers 
analogy is that a federal officer who wields special power over fellow 
citizens is subject to impeachment and ordinary criminal prosecution, 
but private citizens are not subject to this kind of double-whacking.)
---------------------------------------------------------------------------
    \11\ See Akhil Reed Amar and Jonathan L. Marcus, Double Jeopardy 
Law After Rodney King, 95 Colum. L. Rev. 1, 4-27 (1995).
---------------------------------------------------------------------------
    S. 622 thus poses a dilemma. It seeks to both strengthen the 
partnership between state and federal governments and yet deny that 
partnership when it comes to fundamental principles underlying double 
jeopardy and collateral estoppel. If the two governments really are one 
team in investigating and prosecuting, as contemplated by S. 622, then 
when a defendant is prosecuted by teammate and wins an acquittal, is it 
fair for the other teammate to ignore that verdict?
                           iii. alternatives
    Here are some alternative solutions this Committee should consider:

  1. Commission a careful analysis of existing hate crime data.

  2. Consider adoption of a ``model'' state statute that states should 
    be encouraged to adopt. This proposal symbolically affirms a strong 
    national commitment without any arguable federal overreaching. This 
    model statute might even follow the development of two or three 
    different federal antihate pilot programs, whereby the federal 
    government would invite cooperating states to implement these 
    different pilot programs for, say, 5 years. If, say, Minnesota 
    follows program A and Wisconsin follows program B, we can see in 
    the field the comparative strengths and weaknesses of each 
    strategy. And of course state cooperation can be induced by federal 
    funds. This pilot program/model statute approach takes advantage of 
    the virtues of a federal system and state laboratories, and 
    showcases cooperative federalism.

  3. Consider creating a federal civil right of action instead of a 
    federal criminal law. The proposed federal criminal law is likely 
    to be a mere ``feelgood'' law that will rarely be used, as a 
    practical matter, given the predominance of state prosecution, and 
    the provisions of the Justice Department's ``Petite Policy.'' \12\ 
    And it raises double jeopardy concerns that civil causes of action 
    avoid. Further, a civil cause of action is even better at 
    symbolically affirming victims, since it tries to compensate them, 
    and gives them control of litigation. Because civil litigation 
    seeks compensation for past injury rather than criminal punishment, 
    it might be easier to link to the commerce clause as an arguably 
    commercial regulation.
---------------------------------------------------------------------------
    \12\ Under this policy, the Justice Department will generally 
refrain from prosecuting an individual after a state prosecution for 
the same crime, unless there are compelling reasons for a second trial. 
The policy is set forth in the United States Attorneys' Manual, Sec. 9-
2.142.

  4. Make more explicit findings about the link to interstate commerce. 
    Of course, this may require more careful analysis of actual hate 
---------------------------------------------------------------------------
    crime data.

  5. Consider explicitly invoking the citizenship clause of the 
    Fourteenth Amendment in addition to the Thirteenth Amendment. (I am 
    not hugely optimistic that the current Court would accept this 
    basis for Congressional power; but such an assertion is well 
    supported by the letter and spirit and original intent of the 
    Fourteenth Amendment.)

  6. Counterbalance any perceived ``weakening'' of the Act that would 
    result from omitting or trimming Section 4 by an even stronger 
    statement of principle. In its findings (Section 2) Congress should 
    say something like this: ``Acting under our powers to protect the 
    rights of every American citizen to freedom and equality, as 
    contemplated by the Fourteenth Amendment, this Congress declares 
    that all Americans are equal citizens, regardless of race, color, 
    religion, national origin, gender, sexual orientation, or 
    disability.'' [Alternative version: ``We hold these truths to be 
    self evident, that all persons-regardless of race, color, religion, 
    national origin, gender, sexual orientation, or disability--are 
    created equal; that they are endowed by their Creator with certain 
    unalienable rights; that among these rights are life, liberty, and 
    the pursuit of happiness; that to secure these rights, governments 
    are instituted; and that it is the duty of government to protect 
    these rights from those who seek to cause bodily injury to any 
    person on account of that person's actual or perceived race, color, 
    national origin, religion, sexual orientation, gender, or 
    disability.'']

    Thank you, Mr. Chair and members of the Committee.

    Senator Specter. Well, we thank you all. I regret that 
other Senators were not here, but this is not atypical.
    Mr. Neuborne. Senator, one moment, because the notion about 
data I think is terribly important.
    Senator Specter. You may proceed.
    Mr. Neuborne. There was something in the Attorney General's 
testimony that I would like to just highlight, and that is the 
extraordinary success of the recent statute dealing with church 
bombings, 247. The usual apprehension rate in arson--it is a 
very hard crime to solve, as you well know--is only about 16 
percent.
    Once that statute was passed and they were able to create 
the kind of joint Federal-State task forces, the apprehension 
rate for church bombings has gone up to 34 percent. So they 
have more than doubled the apprehension rate in the short time 
that that statute has been in effect. I suggest to the Senate 
that that is a very powerful piece of data pressing in favor of 
enacting this legislation.
    Senator Specter. Well, thank you very much, Professor 
Neuborne, for that observation.
    We do have staff here noting the testimony, and it is part 
of the record and it is very helpful. I think that all of the 
views have been very forcefully expressed. I frankly wish we 
had time for extended questioning, but we do not. So, again, I 
thank you for your participation.
    [Whereupon, at 12:00 p.m., the committee was adjourned.]
                            A P P E N D I X

                              ----------                              

                 Additional Submissions for the Record

                              ----------                              

          Prepared Statement of American Civil Liberties Union

                            i. introduction
    The American Civil Liberties Union respectfully submits this 
statement to urge the Senate Committee on the Judiciary to respond by 
legislation to the continuing problem of an inadequate state and local 
response to criminal civil rights violations, but also to request that 
the Committee amend S. 622, the Hate Crimes Prevention Act of 1999, to 
limit its potential chilling effect on constitutionally protected 
speech. The ACLU believes that the Congress can and should expand 
federal jurisdiction to prosecute criminal civil rights violations when 
state and local governments are unwilling or unable to prosecute, while 
also precluding evidence of mere abstract beliefs or mere membership in 
an organization from becoming a basis for such prosecutions.
    The ACLU has a long record of support for stronger protection of 
both free speech and civil rights. Those positions are not 
inconsistent. In fact, vigilant protection of free speech rights 
historically has opened the doors to effective advocacy for expanded 
civil rights protections.
    Six years ago, the ACLU submitted a brief to the Supreme Court 
urging the Court to uphold a Wisconsin hate crime enhancement statute 
as constitutional. However, the ACLU also asked the Court ``to set 
forth a clear set of rules governing the use of such statutes in the 
future.'' The ACLU warned the Court that ``if the state is not able to 
prove that a defendant's speech is linked to specific criminal 
behavior, the chances increase that the state's hate crime prosecution 
is politically inspired.'' The draft amendment described in this 
statement will help avoid that harm.
    This statement explains the need for legislation to expand federal 
authority to prosecute federal civil rights violations, and the reason 
for adding an evidentiary restriction to section 245 of the federal 
criminal code. The ACLU will strongly support passage of S. 622 if the 
Committee adds the evidentiary restriction and avoids any changes to S. 
622's substantive provisions.
     ii. the persistent problem of criminal civil rights violations
    The ACLU supports providing remedies against invidious 
discrimination and urges that discrimination by private organizations 
be made illegal when it excludes persons from access to fundamental 
rights or from the opportunity to participate in the political or 
social life of the community. The serious problem of crime directed at 
members of society because of their race, color, religion, gender, 
national origin, sexual orientation, or disability merits legislative 
action.
    Such action is particularly timely as a response to the rising tide 
of violence directed at people because of such characteristics. Those 
crimes convey a constitutionally unprotected threat against the 
peaceable enjoyment of public places to members of the targeted group.
    Pursuant to the Hate Crime Statistics Act, the Federal Bureau of 
Investigation annually collects and reports statistics on the number of 
bias-related criminal incidents reported by local and state law 
enforcement officials. In 1996, based on reports from law enforcement 
agencies covering 84 percent of the nation's population, the FBI 
reported 8,759 incidents covered by the Act. 5,396 of those incidents 
were related to race, 1,401 to religion, 1,O16 to sexual orientation, 
940 to ethnicity or national origin, and six to multiple categories.
    Existing federal law does not provide any separate offense for 
violent acts based on race, color, national origin, or religion, unless 
the defendant intended to interfere with the victims participation in 
certain enumerated activities. 18 U.S.C.A. Sec. 245(b)(2). During 
hearings last year in the Senate and House of Representatives, 
advocates for racial, ethnic, and religious minorities presented 
substantial evidence of the problems resulting from the inability of 
the federal government to prosecute crimes based on race, color, 
national origin, or religion without any tie to an enumerated activity. 
Those cases include violent crimes based on a protected class, which 
state or local officials either inadequately investigated or declined 
to prosecute.
    In addition, existing federal law does not provide any separate 
offense whatsoever for violent acts based on sexual orientation, 
gender, or disability. The exclusion of sexual orientation, gender, and 
disability from section 245 of the criminal code can have bizarre 
results. For example, in an appeal by a person convicted of killing an 
African-American gay man, the defendant argued that ``the evidence 
established, if anything, that he beat [the victim] because he believed 
him to be a homosexual and not because he was black.'' United States v. 
Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 1984), cert. denied, 469 U.S. 
838 (1984). Among the evidence that the court cited in affirming the 
conviction because of violence based on race, was testimony that the 
defendant killed the black gay victim, but allowed a white gay man to 
escape. Id. at 1095, 1098. Striking or killing a person solely because 
of that person's sexual orientation would not have resulted in a 
conviction under that statute.
    In addition to the recent accounts of the deaths of Matthew Shepard 
and Billy Jack Gaither, other reports of violence because of a person's 
sexual orientation include:

   An account by the Human Rights Campaign of ``[a] lesbian 
        security guard, 22, [who] was assigned to work a holiday shift 
        with a guard from a temporary employment service. He 
        propositioned her repeatedly. Finally, she told him she was a 
        lesbian. Issuing anti-lesbian slurs, he raped her.''

   A report by Mark Weinress, during an American Psychological 
        Association briefing on hate crimes, of his beating by two men 
        who yelled ``'we kill faggots'' and ``die faggots'' at the 
        victim and his partner from the defendants' truck, chased the 
        victims on foot while shouting ``death to faggots,'' and beat 
        the victims with a billy club while responding ``we kill 
        faggots'' when a bystander asked what the defendants were 
        doing.

   A report by the National Gay and Lesbian Task Force of a 
        letter from a person who wrote that she ``was gang-raped for 
        being a lesbian. Four men beat me, spat on me, urinated on me, 
        and raped me . * * *  When I reported the incident to Fresno 
        police, they were sympathetic until they learned I was 
        homosexual. They closed their book, and said, `Well, you were 
        asking for it.'''

   An article in the November 22, 1997 issue of the Washington 
        Post about five Marines who left the Marine Barracks on Capitol 
        Hill to throw a tear gas canister into a nearby gay bar. 
        Several persons were treated for nausea and other gas-related 
        symptoms.

    The problem of crimes based on gender is also persistent. For 
example, two women cadets at the Citadel, a military school that had 
only recently opened its doors to female students, were singled out and 
``hazed'' by male cadets who did not believe that women had a right to 
be at the school. Male cadets allegedly sprayed the two women with nail 
polish remover and then set their clothes ablaze, not once, but three 
times within a two month period. One male cadet also threatened one of 
the two women by saying that he would cut her ``heart out' if he ever 
saw her alone off campus.
    Federal legislation addressing such criminal civil rights 
violations is necessary because state and local law enforcement 
officers are sometimes unwilling or unable to prosecute those crimes 
because of either inadequate resources or their own bias against the 
victim. The prospect of such failure to provide equal protection of the 
laws justifies federal jurisdiction.
    For example, state and local law enforcement officials have often 
been hostile to the needs of gay men and lesbians. The fear of state 
and local police--which many gay men and lesbians share with members of 
other minorities--is not unwarranted. For example, until recently, the 
Maryland state police department refused to employ gay men or lesbians 
as state police officers. In addition, only last year, a District of 
Columbia police lieutenant who headed the police unit that investigates 
extortion cases was arrested by the FBI for attempting to extort 
$10,000 from a married man seen leaving a gay bar. Police officers 
referred to the practice as ``fairy shaking.'' The problem is 
widespread. In fact, the National Coalition of Anti-Violence Programs 
reports several hundred anti-gay incidents allegedly committed by state 
and local law enforcement officers annually. The federal government 
clearly has an enforcement role when state and local governments fail 
to provide equal protection of the laws.
        iii. importance of adding a new evidentiary restriction
    Despite the need to amend the principal federal criminal civil 
rights statute, 18 U.S.C. Sec. 245, to expand federal jurisdiction to 
address the problem of an inadequate state and local response to 
criminal civil rights violations, the ACLU cannot support S. 622 unless 
the Committee amends the legislation to limit its potential chilling 
effect on constitutionally protected speech. Specifically, the ACLU 
strongly urges the Committee to amend S. 622 by adding the following 
evidentiary provision:

          In any prosecution under this section, (i) evidence proving 
        the defendant's mere abstract beliefs or (ii) evidence of the 
        defendant's mere membership in an organization, shall not be 
        admissible to establish any element of an offense under this 
        section. This provision will reduce or eliminate the 
        possibility that the federal government could obtain a criminal 
        conviction on the basis of evidence of speech that had no role 
        in the chain of events that led to any alleged violent act 
        proscribed by the statute. On its face, S. 622 punishes only 
        the conduct of intentionally selecting another person for 
        violence because of that person's race, color, national origin, 
        religion, gender, sexual orientation, or disability. The 
        prosecution must prove the conduct of intentional selection of 
        the victim. Thus, S. 622, like the present section 245, 
        punishes discrimination (an act), not bigotry (a belief).

    The federal government usually proves the intentional selection 
element of section 245 prosecutions by properly introducing ample 
evidence related to the chain of events. For example, as discussed 
above, in a recent section 245 prosecution based on race, a federal 
court of appeals found that the prosecution met its burden of proving 
that the defendant attacked the victim because of his race by 
introducing admissions that the defendant stated that ``he had once 
killed a nigger queen,''that he attacked the victim ``[b]ecause he was 
a black fag,'' and by introducing evidence that the defendant allowed a 
white gay man to escape further attack, but relentlessly pursued the 
black gay victim.
    Although the Justice Department maintains that it usually avoids 
attempting to introduce evidence proving nothing more than that a 
person holds racist or other bigoted views, it has at least 
occasionally introduced such evidence. In at least one decision, a 
federal court of appeals expressly found admissible such evidence that 
was wholly unrelated to the chain of events that resulted in the 
violent act. United States v. Dunnaway, 88 F.3d 617 (8th Cir. 1996). 
The court upheld the admissibility of a tattoo of a skinhead group on 
the inside lip of the defendant because ``[t]he crime in this [section 
245] case involved elements of racial hatred.'' Id. at 618. The tattoo 
was admissible even in the absence of any evidence in the decision 
linking the skinhead group to the violent act.
    The decision admitting that evidence of a tattoo confirmed our 
concerns expressed in the ACLU's brief filed with the Supreme Court in 
support of the Wisconsin hate crimes penalty enhancement statute. In 
asking for guidance from the Court on the applicability of such 
statutes, the ACLU stated its concern that evidence of speech should 
not be relevant unless ``the government proves that [the evidence] is 
directly related to the underlying crime and probative of the 
defendant's discriminatory intent.'' The ACLU brief urged that, ``[a]t 
a minimum, any speech or association that is not contemporaneous with 
the crime must be part of the chain of events that led to the crime. 
Generalized evidence concerning the defendant's racial views is not 
sufficient to meet this test.''
    The ACLU's concern with S. 622 is that we will see even more such 
evidence admitted in section 245 prosecutions if S. 622 is enacted 
without an evidentiary restriction. Many of the arguments made in favor 
of expanding section 245 are very different than the arguments made in 
favor of enacting section 245 nearly 31 years ago. At that time, the 
focus was on giving the federal government jurisdiction to prosecute 
numerous murders of African-Americans, including civil rights workers, 
which had gone unpunished by state and local prosecutors. The intent 
was to have a federal backstop to state and local law enforcement.
    Although S. 622 will also serve that important purpose in creating 
federal jurisdiction, its proponents are focusing on ``combating 
hate,'' fighting ``hate groups,'' and identifying alleged perpetrators 
by their membership in such groups--even in the absence of any link 
between membership in the group and the violent act. The arguments are 
even applied retroactively. During hearings before the Committee last 
year, the Justice Department referenced section 245, which passed as an 
important part of the Civil Rights Act of 1968, as ``the federal hate 
crimes statute.''
    The danger is that--after a debate focused on combating ``hate''--
courts, litigants, and jurors applying an expanded and more powerful 
section 245 may be more likely to believe that speech-related evidence 
is a proper basis for proving the intentional selection element of the 
offense, even when it was unrelated to the chain of events leading to a 
violent act. The focus may be on proving the selection element by 
showing ``guilt by association'' with groups whose bigoted views we may 
all find repugnant, but which may have had no role in committing the 
violent act. We should add that evidence of association could also just 
as easily focus on many groups representing the very persons that S. 
622 was drafted to protect.\1\ Our suggested amendment will preclude 
all such evidence from becoming the basis for prosecution, unless it 
was part of the chain of events leading to the violent act.
---------------------------------------------------------------------------
    \1\ For example, many of the principal First Amendment association 
decisions arose from challenges to governmental investigations of civil 
rights and civil liberties organizations. See, e.g., Gibson v. Florida 
Legislative Investigation Committee, 372 U.S. 539 (1962) (holding that 
the NAACP could refuse to disclose its membership list to a state 
legislature investigating alleged Communist infiltration of civil 
rights groups); Bates v. City of Little Rock, 361 U.S. 516 (1960) 
(reversing a conviction of NAACP officials who refused to comply with 
local ordinances requiring disclosure of membership lists); NAACP v. 
State of Alabama, 357 U.S. 449 (1958) (holding as unconstitutional a 
judgment of contempt and fine on the NAACP for failure to produce its 
membership lists); New Jersey Citizen Action v. Edison Township, 797 
F.2d 1250 (3rd Cir. 1986) (refusing to require the fingerprinting of 
door-to-door canvassers for a consumer rights group), cert. denied, sub 
nom. Piscataway v. New Jersey Citizen Action, 479 U.S. 1103 (1987); 
Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) (refusing a 
request to compel the disclosure of the membership list of a public 
school reform group); Committee in Solidarity with the People of El 
Salvador v. Sessions, 705 F.Supp. 25 (D.D.C. 1989) (denying a request 
for preliminary injunction against FBI's dissemination of information 
collected on foreign policy group); Alliance to End Repression v. City 
of Chicago, 627 F.Supp. 1044 (1985) (police infiltrated and 
photographed activities of a civil liberties group and an anti-war 
group).
---------------------------------------------------------------------------
    However, the proposed evidentiary amendment is not overly 
expansive. By inserting ``mere'' before ``abstract beliefs'' and 
``membership in an organization,'' the provision will bar only evidence 
that had no direct relationship to the underlying violent offense. It 
will have no effect on the admissibility of evidence of membership or 
belief that bears such a direct relationship to the underlying crime. 
Thus, the proposal will not bar all evidence of membership or belief.
    Finally, we recognize that statutory restrictions on the 
admissibility of evidence in criminal matters are not common. However, 
such restrictions are not without precedent. In fact, the basic 
structure for the new paragraph is from 18 U.S.C.A. Sec. 2101(b), which 
defines admissible evidence for an element of the federal riot statute. 
We believe that the potential for misuse of an expanded section 245 is 
significant enough to warrant a statutory restriction on the 
admissibility of certain evidence.
                             iv. conclusion
    For the foregoing reasons, the ACLU urges the Committee to amend S. 
622 to limit its potential chilling effect on constitutionally 
protected speech, but also to use the legislation to expand federal 
jurisdiction to address the problem of an inadequate state and local 
response to criminal civil rights violations. The ACLU appreciates this 
opportunity to present our concerns.
                               __________

       Prepared Statement of the Center for Women Policy Studies

    The Center for Women Policy Studies strongly supports S. 622, the 
Hate Crimes Prevention Act of 1999 (S. 622), introduced by Senators 
Kennedy, Schumer, Smith, Specter, and Wyden. It is one of the key 
priority women's issues confronting the 106th Congress.
    We would like to make several key points about the inclusion of 
gender in federal legislation that addresses hate crimes.
    First, S. 622 provides uniformity to federal criminal hate 
statutes. The Hate Crimes Sentencing Enhancement Act, included in the 
Violent Crime Control and Law Enforcement Act of 1994, already defines 
a hate crime as ``a crime in which the defendant intentionally selects 
a victim * * * because of the actual or perceived race, color, 
religion, national origin, ethnicity, gender, disability or sexual 
orientation of any person'' (italics added).
    Second, S. 622 provides an important tool to protect battered and 
sexually assaulted women and girls when state or local authorities are 
unable or unwilling to respond adequately. Less than half of the states 
have bias-motivated criminal hate crimes statutes that cover crimes 
based on gender. The federal law ensures that all women have a full set 
of legal remedies, and also allows federal resources to assist with 
investigation and prosecution, particularly when the violence is of the 
most heinous nature. The Center believes that states must take a 
leadership role in ending bias-motivated hate crimes against women by 
expanding their criminal statutes and prosecuting these cases.
    Third, violence against women clearly can meet the requirements of 
widely accepted definitions of hate crimes, as demonstrated in the 
Center's 1991 report Violence Against Women as Bias Motivated Hate 
Crime: Defining the Issues. Hate crimes are acts of terrorism directed 
not only at the individual victims but at their entire community. Its 
purpose is to intimidate and frighten all women and girls, and to put 
them ``in their place.'' Further, hate crimes are directed toward 
groups of people that suffer discrimination in other arenas, and that 
do not have full access to institutions meant to remedy social, 
political and economic injustice. The sad truth is that women are such 
a group of people, and acts of violence against women--from threatening 
obscene telephone calls to street harassment, from battering to rape to 
serial murders with mutilation to mass murders in schools--clearly meet 
the definition of hate crimes. Acts of violence against women--from 
threatening obscene telephone calls to street harassment, from 
battering to rape to serial murders to mutilation to mass murders in 
schools--are crimes committed by one group--men--who by violence 
attempt to intimidate, control and dominate another group--women. And 
the settings for these violent acts are the home, the workplace, the 
schools, and the streets--because the ``boundaries'' women cross are 
not the lines of segregated neighborhoods but the lines of appropriate 
behavior and submission to male authority.
    Fourth, the law and its enforcement must focus on the crime itself 
and its motivation rather than perpetuate misconceptions about the 
nature of violence against women. Hate crimes based on race, ethnicity, 
religion, sexual orientation and disability all have their own 
particular qualities and the victims are identified by the perpetrators 
in different ways and may or may not involve victims and perpetrators 
who are acquainted. Gender-motivated hate crimes, however, are 
sometimes arbitrarily distinguished from other hate crimes because they 
are the most likely to involve a perpetrator and victim who are 
intimately related. Neither the intimacy of the relationship between 
the victim and the attacker, nor the prevalence of violence against 
women perpetuated by men should deter us from looking honestly at why 
the violence occurs.
    Fifth, as with all hate crimes, the prosecutor will face the 
challenge to establish gender-bias motivation through evidence such as 
the use of hate language, nature and severity of the attack, lack of 
provocation, absence of other motives, and a previous history of 
similar incidents of violence and intimidation of the victim and other 
women. This requirement will limit the number of acts of violence 
against women which will be charged and successfully prosecuted as a 
hate crime.
    We believe that members of Congress support protecting women's 
human rights and are dedicated to ending Violence against women and all 
people. We urge the members of the Senate Judiciary Committee to 
support S. 622 as a critical part of a comprehensive national strategy 
for accomplishing these goals.
                               __________

   Prepared Statement of Mrs. Catrina Durr's Law Students, Thornton 
                    Township High School, Harvey, IL

    We the students of Ms. Catrina Durr's law classes at Thornton 
Township High School in Harvey, Illinois, strongly agree that if the 
Federal government imposes legislation that it will help prevent the 
problem of hate crimes. Hate crimes across the nation are increasing 
more than ever before. Hate crimes are any act of discrimination 
committed against a person or a group due to their race, religion, 
sexual preference, and other prejudices. The federal government needs 
to make a clear definition for the phrase HATE CRIME. They must also 
find a way to increase hate crime report so that the criminal 
perpetrator can be fully prosecuted. The government needs to make 
stiffer punishments for these acts because they threatened the 
authority of our government to enforce our most serious mores.
    Hate crimes root from a persons, environment. Children must be 
taught how to respect differences. They also need to learn right from 
wrong. It is also the responsibility of government to insure the safety 
of all Americans not just the dominant class. Ethnocentric ideas have 
protection under the bill of rights of our constitution, but those 
rights are limited when peoples actions violate others rights and 
safety. We must also control all ethnocentric attitudes that harm the 
integrity of our nation. People must be educated about ethnic 
differences; and destroy ignorance. Only the government as a whole can 
address this problem of hate crimes because this is a worldwide 
problem. For example, in the fifties and sixties there were no hate 
crime laws. And during this time African Americans were being lynched 
more than ever before. After states instituted hate crime legislation 
the amount of hate crimes significantly decreased. Therefore we 
strongly want you to consider making a federal hate crime law.
                               __________

  Prepared Statement of Mrs. Linda Franklin's Third Period Students, 
                Thornton Township High School Harvey, IL

    Mrs. Linda Franklin's third period social studies class at Thornton 
Township High School of Harvey, IL strongly believe the Federal 
government must impose legislation in an attempt to prevent the growing 
problem of HATE CRIMES. Those who have become aware of hate crimes, 
should know them to be any act of hate of discrimination committed 
against a person or group of persons due to their race, religion, 
sexual preferences, etc. Thus the Federal government must erect a 
definite and clear definition for the phrase ``hate crime''. The people 
and government must find a way to ensure that hate crimes are reported, 
so that those that commit them may be fully prosecuted. It is also 
important for the Federal government to increase the punishment for 
committing an act of racial discrimination. People must have the 
largest and most logical negative incentive not to commit a hate crime. 
Hate crimes should be considered felonies, and dealt with as felonies. 
The time must be made to fit the crime.
     However, it is important to understand that the problem of hate 
crime has its roots in a person's environment. People must be taught at 
a young age, that despite our differences, we are very much alike. They 
must learn right from wrong at an early age. People who commit hate 
crimes obtain their views of other people, or groups at an early age. 
it is also important that we as a community get rid of the ethnocentric 
attitude that is pulling us apart and become one nation. Furthermore, 
people must be educated about ethnic differences to destroy the 
ignorance that is the driving force behind hate crimes.
                               __________

                  Prepared Statement of Timothy Lynch

    Mr. Chairman, Distinguished Members of the Committee: My name is 
Timothy Lynch. I am associate director of the Cato Institute's Center 
for Constitutional Studies.
    I want to thank the committee for inviting me to submit written 
testimony on the question of whether Congress should enact the ``Hate 
Crimes Prevention Act of 1999.''
    I believe the proponents of hate crimes legislation have good and 
honorable intentions. They would like to see less bigotry and more good 
will in American society. While I share that goal, I believe Congress 
should decline the invitation to enact hate crimes legislation for both 
constitutional and practical reasons.
                      a. constitutional objection
    The U.S. Constitution created a federal government of limited 
powers. As James Madison noted in the Federalist no. 45, ``The powers 
delegated by the proposed Constitution to the federal government are 
few and defined. Those which are to remain in the State governments are 
numerous and indefinite.'' Most of the federal government's ``delegated 
powers'' are specifically set forth in article I, section 8. The Tenth 
Amendment was appended to the Constitution to make it clear that the 
powers not delegated to the federal government ``are reserved to the 
States respectively, or to the people.''
    Crime is serious problem, but under the U.S. Constitution it is a 
matter to be handled by state and local government. In Cohens v. 
Virginia, 6 Wheat (19 U.S.) 264 (1821), Chief Justice John Marshall 
observed that Congress had ``no general right to punish murder 
committed within any of the States'' and that it was ``clear that 
congress cannot punish felonies generally.'' Unfortunately, as the 
years passed, Congress eventually assumed the power to enact a vast 
number of criminal laws pursuant to its power ``to regulate Commerce 
with foreign Nations, and among the several States, and with the Indian 
Tribes.'' \1\
---------------------------------------------------------------------------
    \1\ See Kathleen F. Brickey, ``Criminal Mischief: The 
Federalization of American Criminal Law,'' 46 Hastings Law Journal 1135 
(1995); Edwin Meese III, ``Big Brother on the Beat: The Expanding 
Federalization of Crime,'' 1 Texas Review of Law and Politics 1 (1997). 
See also Richard A. Epstein, ``The Proper Scope of the Commerce 
Power,'' 73 Virginia Law Review 1387 (1987).
---------------------------------------------------------------------------
    In recent years, Congress has federalized the crimes of gun 
possession within a school zone, carjacking, wife beating, and female 
genital cutting. All of that and more has been rationalized under the 
Commerce Clause.\2\ In United States v. Lopez, 514 U.S. 549 (1995), the 
Supreme Court finally struck down a federal criminal law, the Gun-Free 
School Zone Act of 1990, because the connection between handgun 
possession and interstate commerce was simply too tenuous. In a 
concurring opinion, Justice Clarence Thomas noted that if Congress had 
been given authority over matters that simply affect interstate 
commerce, much if not all of the enumerated powers set forth in article 
I, section 8 would be surplusage. Indeed, it is difficult to dispute 
Justice Thomas, conclusion that an interpretation of the commerce power 
that ``makes the rest of Sec. 8 surplusage simply cannot be correct.''
---------------------------------------------------------------------------
    \2\ See Timothy Lynch, ``Dereliction of Duty: The Constitutional 
Record of President Clinton,'' Cato Institute Policy Analysis No. 271, 
March 31, 1997, pp. 37-43.
---------------------------------------------------------------------------
    This Congress should not exacerbate the errors of past Congresses 
by federalizing more criminal offenses. The Commerce Clause is not a 
blank check for Congress to enact whatever legislation it deems to be 
``good and proper for America.'' The proposed Hate Crimes Prevention 
Act is simply beyond the powers that are delegated to Congress.
                          b. policy objections
    Beyond the threshold constitutional problem, there are several 
other reasons why Congress should decline the invitation to enact hate 
crimes legislation.
    First, all of the violent acts that would be prohibited under the 
proposed bill are already crimes under state law. Over the last two 
years, there has been a great deal of publicity surrounding the brutal 
killings of James Byrd in Texas and Matthew Shepard in Wyoming. The 
individuals suspected of committing those murders were quickly 
apprehended and prosecuted by state and local authorities. Those 
incidents do not show the necessity for congressional action; to the 
contrary, they show that federal legislation is unnecessary.\3\
---------------------------------------------------------------------------
    \3\ If convincing evidence were presented to Congress that state 
officials were enforcing the local criminal law in an uneven manner so 
that certain citizens were being deprived of the equal protection of 
the law, Congress can (and should) invoke its legislative power under 
section 5 of the Fourteenth Amendment. I hasten to add, however, that a 
federal ``hate crimes'' law would be an inappropriate response to such 
a situation--for all of the other reasons outlined herein.
---------------------------------------------------------------------------
    Second, the so-called ``Hate Crimes Prevention Act'' is not going 
to prevent anything. Any thug that is already inclined to hurt another 
human being is not going to lay down the gun or knife because of some 
new law passed by Congress. The culprits involved in the killings of 
James Byrd and Matthew Shepard, for example, made a conscious decision 
to disregard basic homicide statutes. And those murders took place in 
states that have the most drastic legal sanction available under the 
law--the death penalty. The notion that any federal hate crime law 
could have prevented those brutal killings is preposterous.
    Third, it is important to note that the whole concept of ``hate 
crimes'' is fraught with definitional difficulties. Hate crimes 
generally refer to criminal conduct motivated by prejudice. Should all 
prejudices be included in the hate crime definition--or only a select 
few? The recent school shooting in Colorado illustrates this problem. 
According to news reports, one of the groups targeted by the deceased 
teenage suspects was athletes.\4\ If the athletes had been the sole 
targets of the school shooting, such a crime would not have been 
considered a hate crime in any jurisdiction (federal or state). And yet 
we can be fairly certain that the perpetrators of the Colorado rampage 
were filled with hatred toward ``jocks.''
---------------------------------------------------------------------------
    \4\ See Eric Pooley, ``Portrait of a Deadly Bond,'' Time, May 10, 
1999, p. 26.
---------------------------------------------------------------------------
    For the proponents of hate crime laws, the dilemma is this: if some 
groups (women, gays, vegetarians, golfers, whatever) are left out of 
the ``hate crime'' definition, they will resent the selective 
depreciation of their victimization. On the other hand, if all victim 
groups are included, the hate crime category will be no different than 
``ordinary'' criminal law.\5\
---------------------------------------------------------------------------
    \5\ See generally James B. Jacobs and Kimberly Potter, Hate Crimes: 
Criminal Law and Identity Politics (Oxford University Press, 1998).
---------------------------------------------------------------------------
    Fourth, proponents of hate crime legislation believe that such laws 
will increase tolerance in our society and reduce intergroup conflict. 
I believe hate crime laws may well have the opposite effect. That's 
because the men and women who will be administering the hate crime laws 
(e.g. police, prosecutors) will likely encounter a never-ending series 
of complaints with respect to their official decisions. When a U.S. 
Attorney declines to prosecute a certain offense as a hate crime, some 
will complain that he is favoring the groups to which the accused 
belongs (e.g. hispanic males). And when a U.S. Attorney does prosecute 
an offense as a hate crime, some will complain that the decision was 
based upon politics and that the government is favoring the groups to 
which the victim belongs (e.g. Asian Americans).
    This is already happening in the jurisdictions that have enacted 
hate crime laws at the local level. For example, when then New York 
City Mayor David Dinkins characterized the beating of a black man by 
white Jewish men as a hate crime in 1992, the Jewish community was 
outraged.\6\ Jewish community leaders said the black man was a burglar 
and that some men were attempting to hold him until the police could 
take him into custody. The black man did not want to go to jail, so he 
resisted--and the Jewish men fought back. Incidents such as that 
illustrate that actual and perceived bias in the enforcement of hate 
crime laws can exacerbate intergroup relations.
---------------------------------------------------------------------------
    \6\ See Mary B.W. Tabor, ``Black is Victim of Beating By Hasidim in 
Crown Heights,'' New York Times, December 2, 1992, p. B3; Jane Fritsch, 
``Police Dept. Vows Caution in Labeling Crimes as Bias Cases,'' New 
York Times, December 22, 1992, p. A1.
---------------------------------------------------------------------------
    Fifth, hate crimes legislation will take our law too close to the 
notion of thought crimes. It is, of course, true that the hate crime 
laws that presently exist cover acts, not just thoughts. But once hate 
crime laws are on the books, the law enforcement apparatus of the state 
will be delving into the accused's life and thoughts in order to show 
that he or she was motivated by bigotry. What kind of books and 
magazines were found in the home? What internet sites were bookmarked 
in the computer? Friends and co-workers will be interviewed to discern 
the accused's politics and worldview. The point here is that such 
chilling examples of state intrusion are avoidable because, as noted 
above, hate crime laws are unnecessary in the first place.
    The claim will doubtless be made that such problems can be avoided 
by ``sound prosecutorial discretion'' with respect to the application 
of hate crimes legislation. Congress should not accept that bland 
assurance. Consider, for example, a hate crime prosecution from Ohio. 
The case involved an interracial altercation at a campground and here 
is how the prosecutor questioned the white person accused of a hate 
crime:

    Q. And you lived next door * * * for nine years and you don't even 
know her first name?
    A. No.
    Q. Never had dinner with her?
    A. No.
    Q. Never gone out and had a beer with her?
    A. No. * * *
    Q. You don't even associate with her, do you?
    A. I talk to her when I can, whenever I see her out.
    Q. All these black people that you have described as your friends, 
I want you to give me one person, just one who was a really good friend 
of yours.\7\
---------------------------------------------------------------------------
    \7\ See Richard Dooling, ``Good Politics, Bad Law,'' New York 
Times, July 26, 1998 (quoting State v. Wyant, 597 N.E.2d 450 (1992), 
vacated and remanded, 113 S.Ct. 2954 (1993), reversed, 624 N.E.2d 722 
(1994)).

    This passage highlights the sort of inquisitorial cross-examination 
that may soon become common whenever an accused person takes the 
witness stand to deny a bias or hate charge that has been lodged 
against him or her.
    In People v. Lampkin, 457 N.E.2d 50 (1983), the prosecution 
presented as evidence racist statements that the defendant had uttered 
six-years before the crime for which he was on trial. This case raises 
the question of whether there is going to be statute of limitations for 
such behavior? For example, it is not uncommon for teenagers to 
entertain various prejudices for brief periods and then discard them as 
they mature into adulthood. Is a stupid remark uttered by a 16 year-old 
on an athletic field going to follow that person around the rest of his 
or her life? Shouldn't our law make room for the possibility that 
people can exhibit some variation of bigotry in life--but then change?
    The good news for Congress is this: all of the problems outlined 
above are avoidable because hate crime legislation is unnecessary in 
the first place.
                             c. conclusion
    For all of the above stated reasons, I would urge Congress not only 
to decline the invitation to pass the Hate Crimes Prevention Act of 
1999, but to repeal all existing federal hate crime laws.
                               __________

       Prepared Statement of National Gay and Lesbian Task Force

    The National Gay and Lesbian Task Force (NGLTF) commends Chairman 
Hatch for holding a hearing on the vital issue of hate crimes in the 
United States. The problem of bias-motivated violence against gay, 
lesbian, bisexual and transgender (GLBT) people is unquestioned. The 
recent series of murders of GLBT people across the country has 
electrified the nation and focused attention on the realities of 
homophobia and the dangers of homophobic rhetoric.
    The National Coalition of Anti-Violence Programs (NCAVP) documented 
2,552 anti-GLBT crimes in 1998 through their network of 26 community-
based organizations across the country. The most striking aspect of 
anti-GLBT crimes in 1998 was the increased level of violence of these 
crimes. The number of anti-GLBT murders more than doubled from 14 in 
1997 to 33 in 1998. The number of assaults which required 
hospitalization of the victim increased by 108 percent. The number of 
anti-GLBT crimes which involved weapons increased 25 percent. The use 
of firearms in these crimes increased 71 percent and the use of knives 
and sharp objects increased 13 percent.
    The FBI, which monitors hate crimes statistics under the Hate 
Crimes Statistics Act, documented 1,375 hate crimes based on sexual 
orientation in 1997, the most recent year for which statistics are 
available. Hate crimes against people based on sexual orientation are 
the third highest category of hate crimes, according to the FBI, 
constituting 14 percent of all hate crimes reported to the FBI.
    These extreme levels of violence are proven anecdotally by several 
murders of gay men which have received national attention. In October 
of 1998, Matthew Shepard, a 21-year-old, gay University of Wyoming 
student was abducted, beaten unconscious, tied to a fence and left to 
die in Laramie, Wyoming. In February, Billy Jack Gaither, a 39-year-old 
resident of Sylacauga, Alabama, a town 40 miles south of Birmingham, 
was taken to a remote location, bludgeoned to death with an ax handle 
and set on fire. In March, Henry Edward Northington, a 39-year-old 
homeless man was murdered and beheaded. His severed head was placed on 
a walkway known to be a gay meeting place.
    Unfortunately, these high profile cases are the exception, not the 
norm. Of the 2,552 anti-GLBT crimes reported to NCAVP, only 1,010 were 
reported to the police. Many GLBT people are reluctant to go to the 
police when they have been a victim of bias-motivated violence. 
Frequently they fear being outed to their friends, families and co-
workers. The risk of losing jobs and the love of family and friends is 
too great and too real. This fear compels the silence of many in the 
GLBT community.
    Studies have shown that victims of hate crimes suffer two to three 
times more symptoms of trauma than victims of other crimes. Research 
indicates that because assailants select victims of hate crimes on the 
basis of the victims' gender, sexual orientation, disability, race, 
religion or national origin, victims often link their vulnerability to 
their personal, cultural or spiritual identity. As a result, victims of 
bias crimes suffer greater emotional trauma than victims of other 
crimes. Criminal activity based on bias terrorizes not only the victim, 
but also the entire community of which the victim is a part.
    Furthermore, police personnel often victimize the victims again. In 
approximately 15 percent of the GLBT hate crimes reported to the 
police, the police refused to take the victim's complaint at all. In 67 
percent of cases the police took the complaint but made no arrests. 
Finally, in 13 percent of cases, the police took the victim's complaint 
but failed to classify the crime as a bias crime. A shocking example of 
this practice can be found in St. Louis, Missouri. A 31 year-old white 
gay man was assaulted by his neighbor. The neighbor entered the 
victim's garage, hit the victim 12 times with a baseball bat while 
saying ``You are a faggot * * * who needs to move [out of this 
neighborhood]. If you don't move you're gonna die.'' The victim 
required 20 stitches and sustained permanent head injury. This incident 
still has not been classified as bias-related.
    Regrettably, many states do not have a mechanism by which gay, 
lesbian, bisexual and transgender people can even report their bias 
crimes. Only 21 states and the District of Columbia have enacted hate 
crimes laws which include sexual orientation. (These states are 
Arizona, California, Connecticut, Delaware, Florida, Iowa, Illinois, 
Kentucky, Louisiana, Maine, Massachusetts, Minnesota, Nebraska, New 
Hampshire, New Jersey, Nevada, Oregon, Rhode Island, Vermont, 
Washington, and Wisconsin.) Nine states do not have any hate crimes 
laws at all.
    Existing federal hate crimes legislation does not cover actual or 
perceived gender, sexual orientation and disability. Current federal 
hate crimes laws also require victims to demonstrate that they were 
singled out for attack because they were enjoying a federally protected 
right, such as voting. This jurisdictional maze allows a defendant to 
argue that he attacked a victim because of his perceived sexual 
orientation, not because of his race.\1\
---------------------------------------------------------------------------
    \1\ See United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 
1984) (rejecting defendant's arguments that he selected the victim on 
the basis of his sexual orientation, not race).
---------------------------------------------------------------------------
    Expanding federal legislation would accomplish several goals. First 
it would provide consistency throughout the country. In all 50 states, 
violence against GLBT people would be illegal and prosecutable. Federal 
prosecution would continue to be limited by the requirement that the 
Attorney General certify cases for federal prosecution. Certification 
will continue to be limited to cases where state and local authorities 
cannot or will not prosecute assailants or where there exists some 
inter-state characteristic to the crime.
    Expanded federal legislation will not stop all hate crimes. No law 
could achieve that goal. But, expanded federal legislation will send a 
clear, national message to the country that all hate crimes, including 
hate crimes based on sexual orientation, disability and gender, are 
unacceptable and will be punished.
    Second, a federal hate crimes law could help address the problem of 
violence against people with HIV/AIDS. NCAVP documented 153 instances 
of violence against people living with HIV disease in 1998. While this 
represents a 43 percent drop in reported incidents from the previous 
year the numbers still indicate an underlying fear of the disease. In 
1988 the Presidential Commission on the Human Immune Deficiency 
Epidemic observed ``Increasingly, violence against those perceived to 
carry HIV, so called `hate crimes,' are a serious problem * * * and are 
indicative of a society that is not reacting rationally to the 
epidemic.'' The Commission called for appropriate legislation to stem 
the tide of violence. By including disability as a protected category, 
the federal government finally will be addressing these acts of 
violence.
    Finally, expanded federal legislation which included actual or 
perceived gender would address the problem of violence directed at 
transgender people. Violence against transgender people soared 49 
percent in 1998, according to NCAVP. Protection against violence based 
on perceived gender is essential to comprehensive hate crimes 
legislation.
    Our nation needs a strong statement from the federal government 
that it is committing its full resources and attention to combating 
this epidemic of violence.
                               __________

       Prepared Statement of NOW Legal Defense and Education Fund

    NOW Legal Defense and Education Fund (NOW LDEF) has a 29-year 
commitment to women's rights and equality. Working to end violence in 
women's lives, including eliminating gender-based bias crimes, is at 
the heart of our mission. We chair the National Task Force to End 
Violence Against Women that was instrumental in enacting the 1994 
Violence Against Women Act (``VAWA '') and litigate to help women 
enforce their rights under the VAWA Civil Rights Remedy. The Hate 
Crimes Prevention Act is essential to fulfilling our country's 
constitutionally guaranteed promise of equality.
                              introduction
    We want to thank Senator Hatch for holding these hearings and 
giving us the opportunity to submit testimony in support of the Hate 
Crimes Prevention Act of 1999 (HCPA) for the Senate Judiciary 
Committee. Hate crime committed because of someone's race, color, 
religion, national origin, gender, sexual orientation or disability is 
an issue of grave importance to us all. Like all bias crimes, bias 
crimes against women are attacks against the community as well as the 
individual. These crimes are not random, but are directed at women 
because they are women. Individual bias-motivated attacks instill fear 
in all women, threatening and constricting women's lives. These crimes 
limit where women work, live and study. As a noted report on gender-
based bias crimes by the Center for Women Policy Studies explains, 
``[w]omen--whether they are white or women of color, heterosexual or 
lesbian, old or young--know that they cannot go places men can go 
without the fear of being attacked and violated.'' \1\ And, because of 
the great number of rapes and assaults by intimate partners, often they 
cannot go home, either? \2\ Federal hate crime laws are critical 
because they provide uniform protection in every state from these 
systemic civil rights violations. HCPA would amend 18 U.S.C. Sec. 245 
(``Section 245''), the federal statute criminalizing certain bias 
crimes, to permit prosecution of bias crimes based on gender, sexual 
orientation or disability. This amendment is necessary in order to make 
real our national commitment to ending all forms of bias-motivated 
violence.
---------------------------------------------------------------------------
    \1\ Center for Women Policy Studies, Violence Against Women as Bias 
Motivated Hat Crime: Defining the Issues 2 (1991).
    \2\ A recent Department of Justice Study revealed that women are 
five to eight times more likely than males to be victimized by an 
intimate. Lawrence A. Greenfield, et. al., U.S. Department of Justice, 
Violence by Intimates: Analysis of Data on Crimes by Current or Former 
Spouses, Boyfriends, and Girlfriends 4 (March 1998).
---------------------------------------------------------------------------
                      why the amendment is needed
    Adding gender to Section 245 provides recourse so that everyone in 
our country has the same protections against bias-motivated violence. 
While states hold primary authority for prosecuting bias crimes, 
gender-based hate crimes frequently go unpunished or underpunished by 
state and local authorities. The majority of states do not have laws 
against violence motivated by gender bias. Of the twenty-two states 
that do prohibit gender bias crimes, many lack comprehensive penalties, 
procedures, and enforcement. Federal authority to prosecute gender-
based bias crimes is needed to ensure that women in every state have 
uniform recourse against bias motivated violence.
    On the whole, women lack federal protection from bias crime. 
Currently, Section 245 permits federal prosecution of certain bias 
crimes committed because of the victim's race, color, religion, or 
national origin, but does not grant Federal prosecutors the authority 
to prosecute bias crimes based on gender. Although the 1994 Violence 
Against Women Act (``VAWA'') addresses some gender bias crimes in its 
criminal provisions, those provisions are limited to cases of 
interstate domestic violence or interstate violations of a protective 
order.\3\ Women surviving all other forms of gender bias crimes have no 
federal recourse for criminal enforcement even if their state law 
enforcement system has not prosecuted the case. And, while the VAWA 
civil rights remedy represents a major legal advance, it is not a 
substitute for criminal prosecution in the aftermath of a violent 
crime.\4\
---------------------------------------------------------------------------
    \3\ See 18 U.S.C. Sec. 2261 (1998); 18 U.S.C. Sec. 2262 (1998).
    \4\ See 42 U.S.C. Sec. 13981 (1997).
---------------------------------------------------------------------------
    The following are a few examples of gender-based bias crimes for 
which federal authority under Section 245 might provide criminal 
redress:

   A serial batterer had a pattern of assaulting, terrorizing, 
        and demeaning women. Although convicted five times for 
        assaulting the same woman, the man never served time for any of 
        his offenses. On his sixth conviction, the 1992 New Hampshire 
        hate crime law was used to enhance the sentence. As a result 
        the man was to serve two to five years for his crime. That 1994 
        case marked what is believed to be the first and only time New 
        Hampshire has used its bias law for a gender-bias crime.

   A woman was battered by her husband for many years. He had 
        battered his former wife and former girlfriends as well. He 
        refused to allow his wife to work, stating that women belong in 
        the home and that he wouldn't tolerate his wife working. She 
        went to the police on numerous occasions, but they responded in 
        only a perfunctory way because they were good friends with her 
        husband. They repeatedly declined to arrest him even when she 
        called the police after he violated the restraining orders she 
        had obtained.

   A serial rapist was accused of raping several women. The 
        crimes were characterized by extreme violence and mutilation of 
        the women's genitals. He fled the state once he learned the 
        local police had identified him as a suspect.

   A woman alleged that she was gang raped by several men who 
        uttered gender-based epithets such as ``bitch'' and ``* * *'' 
        as they raped her. They apparently were in town visiting a 
        friend. Local law enforcement officials said they could not 
        prosecute them because they lived out of state.

   A Washington woman was raped, restrained, battered, 
        disfigured, threatened verbally, as well as with a loaded 
        shotgun. Although Washington currently has legislation 
        prohibiting gender-bias crime, it was not used to prosecute her 
        assailant. In the absence of federal criminal prosecution, the 
        woman ultimately sought relief under the VAWA civil rights 
        remedy, where a federal judge determined the allegations 
        sufficient to conclude that the violence was motivated by 
        gender bias.

   A woman was sexually assaulted by another passenger while 
        she was riding on a train from Florida to New York. During the 
        assault, he berated her, told her that she was getting what she 
        deserved for traveling alone as a woman, and that should be at 
        home raising her children. She had no idea which state the 
        train was passing through at the time of the assault. The 
        Florida and New York police apologetically said they could not 
        prosecute as a result.

   In Florida, a state without laws against gender-bias crime, 
        a woman ran from a fraternity house, naked and crying. She 
        called the police and reported that she had been raped and that 
        it had been videotaped. The police find the video tape in which 
        at least one man assaulted the woman while several of his 
        ``brothers'' commentate for the video, stating ``This is what 
        you call * * * Rape, Rape, Rape, Rape white trash''; ``the 
        night we rape a white trash crackhead * * *''; ``It is Rape-
        thirty in the morning''; and ``Notice the struggle of the 
        hands.'' After viewing the video, local police concluded that 
        the video demonstrated consent and arrested the woman for 
        making a false report.

   In Nevada, another state without gender bias crime laws, a 
        woman befriended a man on the internet and agreed to meet him. 
        For security reasons she insisted that he meet her at her 
        parents home, where she lives. He and another man came to the 
        home, handcuffed her, stuffed her into the trunk of the car, 
        kidnaped, raped and assaulted her. They then drove her home, 
        and told her that no one would ever believe her. When she 
        reported the assault, local police allegedly laughed at her, 
        called her a liar, and told her that if she was lying she would 
        have to pay for the cost of the lab tests. The matter was not 
        pursued until months later when a second victim, a seventeen 
        year old girl, was lured to the man's apartment, raped and 
        escaped half naked. Four other women reported similar treatment 
        by the local authorities.

    As these cases demonstrate, some gender-based crimes contain all 
the earmarks of other bias crimes--such as biased epithets or comments, 
patterns of behavior, and lack of any other apparent motive. Some cry 
out for federal intervention to fill needed gaps when state law 
enforcement proves ineffective. While most gender-based bias crimes 
should continue to be prosecuted at the state level, and while 
resources should continue to be directed to improving the formal and 
informal responses of local law enforcement officials, federal 
assistance still is required in appropriate cases, to ensure that 
justice is served.
    federal action is needed to respond to limitations in state law 
                              enforcement
    While states have made much progress in their responses to gender-
based crimes, state law enforcement's failure to adequately recognize 
and address gender-motivated crimes unfortunately continues to pose 
substantial, and sometimes life-threatening obstacles for women.\5\ The 
1994 VAWA took the first step in ameliorating the problem of formal and 
informal failings of state laws.\6\ But reports of state task forces 
looking at gender bias, issued since VAWA's passage, reveal that these 
problems, remain entrenched. For example, the 1996 report of the North 
Dakota Commission on Gender Fairness in the Courts indicates that women 
still are subjected to victim blaming, trivialization and stereotyped 
views of their credibility in criminal and civil domestic violence 
proceedings.\7\ In one instance, a judge informed a battered woman 
seeking a protective order that she would one day realize that it was 
all ``her fault.'' \8\ A member of the Minnesota Supreme Court Gender 
Fairness Implementation Committee in 1997 reported that domestic 
assaults persistently are plea bargained down to disorderly conduct 
offenses and that the state law requiring presentence investigations in 
domestic assault situations is consistently ignored.\9\ She similarly 
noted that judges fail to apply appropriate sanctions for failures to 
comply with probation or treatment requirements in domestic violence 
cases.\10\
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    \5\ For example, in enacting VAWA Congress cited study after study 
concluding that crimes disproportionately affecting women are treated 
less seriously than comparable crimes affecting men. See, e.g., Ericson 
v. Syracuse Univ., 98 Civ. 3435, 1999 U.S. Dist. LEXIS 5225, at p.3 n.1 
(S.D.N.Y. Apr. 13, 1999) (recounting reports of gender-bias task 
forces); 1993 Senate Report, at 49; (citing studies of state gender-
bias task forces); 1991 Senate Report, at 46-47, 49. Congress also 
recognized that police, prosecutors, juries and judges routinely 
subject female victims of rape and sexual assault as well as domestic 
violence to unfair and degrading treatment that contributes to the low 
rates of reporting and conviction that characterize these crimes. See, 
e.g. 1993 Response to Rap at 2-6; accord Violence Against Women: 
Hearing Before the subcomm. On Crime and Criminal Justice of the House 
Comm. On the Judiciary, 102d Cong. 63, at 75 (1992) (``1992 Violence 
Against Women Hearing''); (statement of Margaret Rosenbaum, Assistant 
State Attorney and Division Chief, Domestic Crimes Unit, Miami, 
Florida) (recognizing that police officers persist in failing to treat 
domestic violence as a ``real crime''); 1991 Senate Report, at 39; 
Violence Against Women: Hearing Before the Subcomm. On Crime and 
Criminal Justice of the House Comm. On the Judiciary. 102d Cong. 63, at 
75 (1992) (``1992 Violence Against Women Hearing''); Women and 
Violence: Hearing Before the Senate Comm. on the Judiciary, 101st Cong. 
29-30 (1990) (statement of Marla Hanson).
    \6\ For VAWA's legislative history documenting Congress' 
recognition of state judicial systems' long histories of treating 
gender-based crimes less seriously than other crimes warranted federal 
intervention, see, e.g., 1993 Senate Report, at 42. See also Staff of 
Senate Comm. on the Judiciary, 103d Cong., The Response to Rape: 
Detours on the Road to Equal Justice 1-2 (Comm. Print 1993) (``1993 
Response to Rape''); S. Rep. No. 102-197, at 43-48 (1991) (``1991 
Senate Report'').
    \7\ A Difference in Perceptions: The Final Report of the North 
Dakota Comm'n on Gender Fairness in the Courts, 72 N.D. L. Rev. 1113, 
1208-12 (1996).
    \8\ Id. at 1208.
    \9\ Letter from Judge Mary Klas to National Assoc. of Women Judges 
(Aug. 26, 1997) (on file with NOW LDEF).
    \10\ Id. at 2. See also Alaska Joint State-Federal Courts Gender 
Equality Task Force, Final Report 22, 44 (April 1996) (recognizing 
prevalence of gender bias and tendency of magistrates and judges to 
rely on subjective factors rather than evidence when deciding whether 
to issue domestic violence protective orders).
---------------------------------------------------------------------------
    The need for federal jurisdiction as a remedy to states' failed 
responses to gender-based crimes starkly echoes the impetus in 1968 for 
the passage of 18 U.S.C. Sec. 245. At that time, state criminal laws 
purportedly provided protection from bias-related violent crimes, but 
it became increasingly apparent that those laws were being unevenly 
enforced with respect to race. Those who enacted Section 245 recognized 
that ``[u]nder the Federal system, the keeping of the peace is, for the 
most part, a matter of local and not Federal concern.'' \11\ Yet, 
unchecked violence against African-Americans led Congress to enact a 
federal remedy. According to the Senate Report:
---------------------------------------------------------------------------
    \11\ S. Rep. No. 90-721, reprinted in 1968 U.S.C.C.A.N. 1837, 1839.

          [L]ocal officials have either been unable or unwilling to 
        solve and prosecute crimes of racial violence or to obtain 
        convictions in such cases--even where the facts seem to 
        warrant. As a result, there is need for Federal action to 
        compensate for the lack of effective protection and prosecution 
        on the local level.\12\
---------------------------------------------------------------------------
    \12\ Id., reprinted in 1968 U.S.C.C.A.N. 1840.

States' uneven responses to gender-based violent crimes similarly 
---------------------------------------------------------------------------
supports amending Section 245 today to permit federal prosecution.

    Unfortunately, an extensive body of case law confirms that time and 
again violence, injury and death might have been prevented but for the 
neglect, inaction, bias or complicity of local police and police 
department policies.\13\ Appropriate federal intervention could have 
saved lives.
---------------------------------------------------------------------------
    \13\ ``See, e.g., Soto v. Flore, 103 F.3d 1056 (1st Cir. 1997) 
(batterer killed his two children and then himself after police, who 
were his friends, refused to arrest him despite mandatory arrest law), 
cert. denied, 118 S.Ct. 71 (1997); Navarro v. Block, 72 F.3d 712 (9th 
Cir. 1995) (batterer killed his wife and four others after police 
refused to respond to her call for help, even though she told 
dispatcher about restraining order and that he was headed to the house 
to kill her); Pinder v. Johnson, 54 F.3d 1169 (4th Cir. 1995) (batterer 
burned former girlfriend's house, killing her three children, following 
battering incident, after which police assured her that he would be 
held in jail overnight but released him instead); accord Eagleston v. 
Guido, 41 F.3d 865 (2d Cir. 1994); Ricketts v. City of Columbia, 36 
F.3d 775 (8th Cir. 1994); Brown v. Grabowski, 922 F.2d 1097 (3d Cir. 
1990); Raucci v. Town of Rotterdam, 902 F.2d 1050 (2d Cir. 1990); 
Balistreri v. Pacifica Police Dep't., 901 F.2d 696 (9th Cir. 1988); 
McKee v. City of Rockwell, 877 F.2d 409 (5th Cir. 1989); Watson v. City 
of Kansas City, 857 F.2d 690 (10th Cir. 1988); Smith v. City of Elyria, 
857 F. Supp. 1203 (N.D. Ohio 1994).
---------------------------------------------------------------------------
 adding gender to section 245 also is consistent with international law
    The HCPA's inclusion of gender comports with the United States' 
obligations as a signatory to the International Covenant on Civil and 
Political Rights (``ICCPR''), to provide broad protection against 
gender-based violence.\14\ International human rights standards have 
adopted that customary norm under which gender-based violence is 
recognized as an impermissible form of discrimination for which all 
countries are obligated to provide remedies.\15\ The HCPA is thus 
consistent with and would mark a step towards compliance with these 
international human rights standards.
---------------------------------------------------------------------------
    \14\ International Covenant on Civil and Political Rights, opened 
for signature Dec. 16, 1966, S. Treaty Doc. No. 95-2, 999 U.N.T.S. 171 
(ratified by United States on June 8, 1992) (creating protections 
through guaranteeing freedom of liberty and security of person, the 
right to be free from torture or cruel, inhuman, or degrading treatment 
and equal and effective protection against discrimination, inter alia, 
on the basis of sex).
    \15\ See, e.g., Compilation of General Comments and General 
Recommendation Adopted by Human Rights Treaty Bodies, at General 
Recommendation 19, p. 112 U.N. Doc. HRI/GEN/1/Rev. 2 (29 March 1996) 
(referencing United Nations Committee on the Elimination of All Forms 
of Discrimination Against Women (``CEDAW'')); Inter-American Convention 
on the Prevention, Punishment, and Eradication of Violence Against 
Women, opened for signature 9 June 1994, 3 IHRR 232 (adopted by 
acclamation of the General Assembly of the Organization of American 
States).
---------------------------------------------------------------------------
                     determining gender-motivation
    In order to ensure that federal resources are used appropriately, 
the HCPA only would apply to cases in which prosecutors could establish 
that the crime was committed because of gender bias, rather than 
another non-discriminatory or random motive. Assessing when acts of 
violence against women are gender-motivated is not a novel inquiry, 
particularly for federal courts. If Section 245 is amended to include 
gender, prosecutors and courts evaluating criminal bias crime 
allegations can employ the same analysis used in other civil rights and 
discrimination cases to determine whether a particular violent act was 
committed because of the victim's gender.
    Courts already assess whether violent acts were gender-motivated in 
other contexts. For example, a series of discriminatory epithets 
combined with evidence of discriminatory views about women led one 
court to recognize a gender-based conspiracy by anti-abortion 
protestors that violated 42 U.S.C. Sec. 1985(3) (``Section 1985(3)''), 
the federal statute prohibiting conspiracies to violate an individual's 
civil rights.\16\ A few other courts have recognized that sexual 
harassment and discrimination at work could reflect gender-motivated 
conspiracies that also violate Section 1985(3).\17\ Courts also have 
begun to recognize that sexual assaults and domestic violence may be 
forms of gender-motivated violence that violate the Civil Rights Remedy 
of the 1994 Violence Against Women Act.\18\
---------------------------------------------------------------------------
    \16\ See Libertad v. Welch, 53 F.3d 428, 449 (1st Cir. 1995).
    \17\ See, Saville v. Houston County Healthcare Auth., 852 F. Supp. 
1512, 1537-40 (M.D. Ala. 1994); Larson v. School Bd. of Pinellas 
County, 820 F.Supp. 596, 602 (M.D. Fla. 1993).
    \18\ See, e.g., Brzonkala v. Virginia Polytechnic, 132 F. 3d 949 
(4th Cir. 1997) (gang rape with comments evincing gender-bias), rev'd 
on other ground, 1999 U.S. App. LEXIS 3457, No. 96-1814 (4th Cir. en 
banc Mar. 5, 1999); Culberson v. Doan, No. C-1-97-965 (S.D. Ohio Apr. 
8, 1999) (allegations of domestic violence with circumstantial evidence 
gender bias); Liu v. Striuli, No. 96-0137 L, 1999 WL 673629 (D.R.I. 
Jan. 19, 1999) (allegations of rapes of graduate student by professor 
with lewd comments, threats and lack of other apparent motive); Ziegler 
v. Ziegler, 28 F. Supp. 2d 601 (D. Wa. 1998) (allegations of domestic 
violence with gender-specific epithets, acts that perpetuated 
stereotypes of women's submissive role, attacks during pregnancy and at 
times when plaintiff asserted her independence); Kuhn v. Kuhn, No. 98 C 
2395, 1998 WL 673629 (N.D. 111. Sept. 16, 1998) (allegations of 
criminal sexual assault by husband with evidence of derogatory gender 
based comments); Mattison v. Click Corp., No. 97-CV-2736, 1998 U.S. 
Dist. LEXIS 720, at *23 (E.D. Pa. Jan. 27, 1998) (sexual assault, 
sexual harassment and battering by supervisor); Crisonino v. New York 
City Housing Auth., 985 F. Supp. 385 (S.D.N.Y. 1997); Anisimov v. Lake, 
982 F. Supp. 531 (N.D. Ill. 1997) (inappropriate sexual advances, 
including fondling, attempting to remove clothing, grabbing breasts, 
assault and rape by boss); cf, McCann v. Rosquist, No. 2:97-CV-0535-S, 
1998 U.S. Dist. LEXIS 3685 (D. Utah Mar. 19, 1998) (stating that sexual 
assault and harassment by boss were gender-motivated while rejecting 
claims on other grounds).
---------------------------------------------------------------------------
    Similarly, in evaluating sexual harassment claims brought under 
Title VII of the Civil Rights Act of 1964 (``Title VII''), courts 
routinely analyze the totality of the circumstances to assess whether 
the offensive conduct was committed because of the victim's gender.\19\ 
Applying that test to allegations of workplace sexual harassment, 
courts have found certain conduct to be indicative of gender 
motivation. That conduct includes: repeated lewd or sexually suggestive 
comments;\20\ derogatory epithets or nicknames ;\21\ display of 
pornographic pictures that was part of a pattern of harassment;\22\ 
comments reflecting negative and stereotypical views of women;\23\ or 
patterns of similar conduct toward other women.\24\ Looking at the 
totality of the circumstances, courts analyzing workplace sexual 
harassment cases specifically have concluded that rapes or sexual 
assaults at work may reflect sufficient gender-motivation to create a 
hostile environment.\25\ Applying the same type of analysis, courts can 
analyze whether rapes or sexual assaults reflected gender-motivation 
under HCPA.
---------------------------------------------------------------------------
    \19\ See, e.g., Oncale v. Sundowner Offshore Servs., Inc., 118 
S.Ct. 998 (1998); Harris v. Forklift Sys., Inc., 114 S.Ct. 367 (1993); 
Meritor Savings Bank v. Vinson, 477 U.S. 57 (1986).
    \20\ See EEOC v. Hacienda Hotel, 881 F.2d 1504, 1514-15 (9th Cir. 
1989) (sexual remarks, vulgarities, requests for sexual favors and 
disparaging comments about pregnancy created a hostile environment); 
Bundy v. Jackson, 641 F.2d 934, 944-45 (D.C. Cir. 1982) (sexually 
stereotyped insults and demeaning propositions created a hostile 
environment).
    \21\ See, e.g., Carr v. Alison Turbine, 32 F.3d 1007, 1009 (7th 
Cir. 1994 (derogatory sexual remarks, sexual epithets, playing sex- or 
gender-related ``pranks'' contributed to hostile environment); EEOC v. 
A. Sam & Sons Produce Co., 872 F. Supp. 29, 34 (W.D.N.Y. 1994) 
(evidence included company vice-president's repeated references to 
female co-worker as a ``* * *'').
    \22\ See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 
1482 n.3 (3rd Cir. 1990).
    \23\ See, e.g., Harris, 114 U.S. at 369 (``you're a woman, what do 
you know?''); cf. Price Waterhouse v. Hopkins, 490 U.S. 228, 235-36, 
288 (1989) (sex discrimination case in which woman was charged with 
being ``overly aggressive, unduly harsh,'' ``macho'' and directed to go 
to charm school because ``it's a lady using foul language'').
    \24\ See, e.g., Paroline v. Unisys Corp., 879 F.2d 100, 103 (1989), 
vacated in part on other grounds, 900 F.2d 27 (4th Cir. 1990) (several 
female clerical workers subjected to pattern of sexually suggestive 
remarks and unwelcome touching).
    \25\ See, e.g., Brock v. United States, 64 F.3d 1421, 1423 (9th 
Cir. 1995) (``every rape committed in the employment setting is also 
discrimination based on the employee's sex''); Tomka v. Seiler Corp., 
66 F.3d 1295, 1305 (2d Cir. 1995) (``even a single incident of sexual 
assault sufficiently alters the conditions of the victim's employment 
and clearly creates an abusive work environment''); Yaba v. Roosevelt, 
961 F. Supp. 611, 620 (S.D.N.Y. 1997) (sexual assault and harassment by 
law firm partner created a hostile work environment); Al Dabbagh v. 
Greenpeace, Inc., 873 F. Supp. 1105, 1110-11 (N.D. Ill. 1994) (pattern 
of sexual assaults at work created a hostile environment).
---------------------------------------------------------------------------
    Bias crimes based on race, color, religion or national origin that 
have been prosecuted under Section 245 and under Section 1985(3) also 
show that federal courts readily analyze the circumstances surrounding 
violent incidents to determine whether they were motivated by bias. 
Courts have relied on evidence similar to that cited in the cases 
described above: racial slurs or epithets;\26\ derogatory comments 
about members of a particular race made in connection with the violent 
incident;\27\ prior acts and statements reflecting racial 
animosity;\28\ prior acts of violence committed against the members of 
a protected group;\29\ and membership in a group espousing racially 
biased views.\30\ Undoubtedly, courts can analyze similar types of 
evidence to determine whether and when violent crimes committed against 
women were gender-motivated.
---------------------------------------------------------------------------
    \26\ See, e.g., United States v. Makowski, 120 F.3d 1078, 1080 (9 
Cir. 1997); United States v. Dunnaway, 88 F.3d 617, 618 (8th Cir. 
1996); Usher v. City of Los Angeles, 828 F.2d 556, 561 (9th Cir. 1987); 
Fisher v. Shambur , 624 F.2d 156, 158 (10th Cir. 1980); Lac Du Flambeau 
v. Stop Treaty Abuse, 843 F. Supp. 1284, 1292-93 (W. D. Wis.), aff'd, 
41 F. 3d 1190 (7th Cir. 1994), cert. denied, 514 U.S. 1096 (1995); Hawk 
v. Perillo, 642 F. Supp. 380, 392 (N.D. Ill. 1985).
    \27\ See, Griffin v. Breckenridge, 403 U.S. 88, 103 (1971); 
Makowski, 120 F.3d at 1080; United States v. Bledsoe, 728 F.2d 1094, 
1095 (8th Cir. 1984); United States v. Franklin, 704 F.2d 1183, 1186 
(10th Cir. 1983); Johnson v. Smith, 878 F. Supp. 1150, 1155 (N.D. Ill. 
1995).
    \28\ See, e.g., United States v. Woodlee, 136 F.3d 1399, 1410 (10th 
Cir. 1998); United States v. Dunnaw, 88 F.3d 617, 618 (8th Cir. 1996); 
United States v. Lane, 883 F.2d. 1484, 1496 (10th Cir. 1989).
    \29\ See, e.g., United States v. Bledso, 728 F.2d 1094, 1098 (8th 
Cir. 1984); United States v. Franklin, 704 F.3d 1183, 1187 (10th Cir. 
1983).
    \30\ See, e.g., United States v. Dunnaway, 88 F.3d 617, 618 (8th 
Cir. 1996).
---------------------------------------------------------------------------
 not all violent crimes against women will be prosecuted under the hcpa
    Since the HCPA is a limited federal remedy, it would not authorize 
Section 245 to be used in every crime of violence committed against a 
woman or even in every case of sexual assault. Just as not all crimes 
committed against racial, religious or sexual minorities constitute 
bias crimes, only those crimes containing evidence of gender-bias would 
be subject to federal prosecution.\31\ Generally-accepted guidelines 
for identifying bias crimes direct courts to look at a range of 
factors, including language, severity of the attack, absence of another 
apparent motive, patterns of behavior, and ``common sense.'' \32\ 
Congress recognized the applicability of those guidelines to gender-
motivated crimes when it enacted the 1994 VAWA.\33\ Drawing from these 
guidelines, prosecutors and courts can evaluate the totality of the 
circumstances in gender-based bias crime allegations to determine which 
cases contain sufficient evidence that the crimes were committed 
because of the victim's gender, and therefore, are subject to federal 
prosecution.
---------------------------------------------------------------------------
    \31\ See generally Anti-Defamation League, Hate Crimes Laws 2-3 
(1997); Northwest Women's Law Center et al., Gender Bias Crimes: A 
Legislative Resource Manual 12-14 (1994).
    \32\ See U.S. Dep't of Justice, Federal Bureau of Investigation, 
Hate Crime Data Collection Guidelines 1-4; Center for Women Policy 
Studies, Violence Against Women as Bias Motivated Hate Crime: Defining 
the Issues 8-12 (1991).
    \33\ See S. Rep. No. 103-138, at 53 n.61 (1993) (``1993 Senate 
Report'').
---------------------------------------------------------------------------
    HCPA contains two additional limitations on the cases that would be 
subject to prosecution. First, Section 245's certification requirement 
preserves the states' primary role in prosecuting criminal laws by 
requiring the Attorney General to certify that each prosecution is ``in 
the public interest and necessary to secure substantial justice.\34\ In 
addition, the bill only authorizes prosecutions of bias crimes based on 
gender, sexual orientation or disability where the crime is connected 
to interstate commerce.\35\
---------------------------------------------------------------------------
    \34\ 18 U.S.C. Sec. 245(a)(1).
    \35\ See S. 622 (4)(2)(B); H.R. 1082 (4)(2)(B).
---------------------------------------------------------------------------
         adding gender to 18 u.s.c. Sec. 245 is constitutional
    Adding gender to the protected groups against whom bias crimes may 
be prosecuted is well grounded in Congress' constitutional authority. 
Courts have upheld Section 245 as a valid exercise of Congress' power 
under the Commerce Clause, the Thirteenth Amendment and Section 5 of 
the Fourteenth Amendment.\36\ Since it regulates conduct and not 
speech, it implicates no first amendment rights.\37\
---------------------------------------------------------------------------
    \36\ See, e.g., United States v. Lane, 883 F.2d 1484 (10th Cir. 
1989) (Commerce Clause); United States v. Bledso , 728 F.2d 1094 (8th 
Cir. 1984) (13th and 14th Amendments).
    \37\ The Supreme Court has upheld against first amendment-based 
challenges the constitutionality of bias-crime statutes that regulate 
conduct and not speech. See Wisconsin v. Mitchell, 508 U.S. 476, 487-90 
(1993).
---------------------------------------------------------------------------
    Most important, since any gender-based prosecutions would require 
proof that the offense had some impact on or was committed in 
connection with any activity involved in or affecting interstate 
commerce, there can be no doubt that HCPA firmly is grounded in 
Congress' Commerce Clause powers.\38\ The Supreme Court has upheld the 
constitutionality of statutes like HCPA, which require the crossing of 
a state line, because they regulate conduct that squarely is in 
interstate commerce.\39\ Courts have upheld analogous criminal 
provisions of the 1994 Violence Against Women Act against 
constitutional challenges, finding them within Congress' Commerce 
clause powers because both felonies contain a jurisdictional 
requirement similar to that in the HCPA.\40\ Courts have uniformly 
upheld other similar federal criminal statutes containing 
jurisdictional elements as well.\41\ Moreover, HCPA poses none of the 
federalism issues that concerned the Supreme Court in Lopez,\42\ 
because civil rights enforcement is an area of traditional federal 
jurisdiction.\43\
---------------------------------------------------------------------------
    \38\ Congress' Commerce Clause authority includes three categories 
of permissible regulation: (1) regulation of the channels of interstate 
commerce; (2) regulation of persons and things in interstate commerce; 
and (3) regulation of activity that substantially affects interstate 
commerce. United States v. Lope, 514 U.S. 549, 558-59 (1995).
    \39\ See Lope, 514 U.S. at 562 (noting that jurisdictional element 
would ensure an otherwise-ambiguous statute's connection with 
interstate commerce); Cleveland v. United States, 329 U.S. 14 (1946) 
(upholding Mann Act, which regulates regulating interstate transport of 
a woman or girl for immoral purposes); Caminetti v. United States, 242 
U.S. 470 (1917) (upholding White Slave Traffic Act, which regulates 
interstate transport of another for purposes of debauchery).
    \40\ See, e.g., United States v. Page, 167 F. 3d 325 (6th Cir. 
1999); See, e.g., U.S. v. Hayes, 135 F.3d 133 (2d Cir. 1998); United 
States v. Von Foelkel, 136 F.3d 339 (2d Cir. 1998); United States v. 
Wright 128 F.3d 1274 (8th Cir. 1997), cert. denied, 118 S.Ct. 1376 
(1998); United States v. Bailey, 112 F.3d 758 (4th Cir.), cert. denied, 
118 S.Ct. 240 (1997). While a jurisdictional element is not required, 
its presence in the HCPA eliminates concerns that have arisen in 
challenges to the VAWA Civil Rights Remedy, 42 U.S.C. Sec. 13981, which 
contains no such jurisdictional element.
    \41\ See, e.g., United States v. Cobb, 144 F.3d 319 (4th Cir. 1998) 
(federal car jacking statute); United States v. Well, 98 F.3d 808, 810-
11 (4th Cir. 1996) (federal firearms statute); United States v. 
Robinson, 119 F.3d 1205, 1214 (5th Cir. 1997), cert. denied, 118 S.Ct. 
1104 (1998) (Hobbs Act, which criminalizes interstate robbery or 
extortion); United States v. Corona, 108 F.3d 565, 570-71 (5th Cir. 
1997) (federal arson statute).
    \42\ See, e.g., 514 U.S. at 567.
    \43\ See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 575 
(1986) (noting ``highest importance'' of vindicating civil rights 
violations).
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                               conclusion
    Women's continued subjugation to gender-motivated bias crimes 
combined with the limitations of state law enforcement systems provide 
compelling justification to amend Section 245 to include gender as one 
of the protected categories. Existing case law and standards for 
federal prosecution of other bias crimes show that discerning which of 
the violent crimes committed against women are committed because of the 
victims' gender is not a novel, unique, or overwhelming inquiry, but 
draws on analytical tools familiar to federal courts in similar 
contexts. Including gender in Section 245 will provide redress to women 
currently denied access to criminal justice and will substantially 
advance our country's efforts to fight this devastating epidemic of 
violence against women.
                                 ______
                                 

                      Real-Life Gender Bias Crimes

    The following are all true stories of violence against real women 
summarized from newspaper articles and court cases. These examples have 
been identified as gender-bias crimes by using the widely accepted FBI 
guidelines for identifying bias crimes. Under these guidelines, 
analysts use common sense and look at a range of factors, including 
whether there is: a history of misogynistic behavior, a pattern of 
assaulting women, sexual violence, bias language, epithets, extreme 
brutality, mutilation and seemingly motiveless cruelty that 
characterizes bias crimes.\1\ While a few of these examples demonstrate 
that states with gender bias crime laws are able to identify violence 
motivated by gender bias, others demonstrate why federal jurisdiction 
over these crimes is imperative.
---------------------------------------------------------------------------
    \1\ See U.S. Dep't of Justice Federal Bureau of Investigation, Hate 
Crimes Data Collection Guidelines 1-4; Northwest Women's Law Center et 
al., Gender Bias Crimes: A Legislative Resource Manual 12-14 (1994); 
Center for Women Policy Studies, Violence Against Women as Bias 
Motivated Hate Crimes: Defining the Issues 8-12 (1991). Decisions 
analyzing other civil rights laws, such as Title VII or 42 U.S.C. 
Sec. 1985 (3) also demonstrate how circumstantial evidence can 
establish bias motivation underlying violent acts.
---------------------------------------------------------------------------
    Arkansas: A woman's badly mutilated body was discovered just two 
days after her second wedding anniversary. She had been stabbed 
approximately 130 times in the breasts, vagina, buttocks, eyes and 
forehead. Her husband was ultimately charged with the murder.\2\
---------------------------------------------------------------------------
    \2\ Suzanne Pharr, ``Hate Violence Against Women: A Long Killing 
Season,'' Violence Against Women (National Network of Women's Funds, 
Spring 1991).
---------------------------------------------------------------------------
    California: On November 3, 1998, a man was arrested after walking 
into the Humboldt County Sheriff's Department and admitting that he had 
``hurt a lot of people.'' He pulled a woman's severed breast from his 
coat pocket, saying the evidence was ``the tip of the iceberg.'' The 
man confessed to killing four women, describing how he picked up one 
woman as she walked near a shopping mall. He decapitated her, severed 
her arms and breasts and cooked one breast in the oven. He burned the 
woman's clothing and disposed of her body parts in various locations. 
Her nude torso was discovered 12 days later in a slough. The man 
admitted to authorities that he often picked up prostitutes and other 
women and that it was not uncommon for women to stop breathing while 
they were having sex with him.\3\
---------------------------------------------------------------------------
    \3\ Trucker Describes Slaying to Jury,'' The Eureka Times-Standard 
( April 8, 1999).
---------------------------------------------------------------------------
    Connecticut: Two police officers have been charged with having 
coerced sexual favors from women under threat of arrest. While in 
uniform and on duty, Officer Rivera is alleged to have repeatedly 
coerced five different women to engage in sexual acts under threat of 
arrest. He forced one woman into his police vehicle and took her to a 
remote location, ordered her to pose nude while lewd photos were taken 
and forced her to engage in fellatio. He forced another to lie on the 
seat of the vehicle while he masturbated over her face and chest, 
forced her to masturbate with the police baton, and to engage in 
fellatio. He coerced another into engaging in sexual acts in exchanged 
for promises that his official actions would be influenced thereby. He 
grabbed another woman who was walking with her minor daughter, forced 
her into his patrol car, and told her: ``* * *, you are going to 
jail.'' ``You * * *. One of these days you are going to suck my * * * 
and my * * *'' and forcibly ejected her from the car. Officer Basile is 
alleged to have: forced a woman into his vehicle, driven her to a 
remote location and coerced her to engage in fellatio with him, under 
threat of arrest; coerced another to engage in fellatio with him, under 
threat of arrest; and coerced yet another woman to engage in fellatio 
with him on numerous occasions, also under threat of arrest. While 
these two officers have pleaded innocent to these charges, a third 
officer who was present and did not intervene in the incidents has 
pleaded guilty to aiding and abetting the officers, and a fourth man, a 
former officer, pleaded guilty to providing the camera that was used to 
take the lewd photos of the first victim.\4\
---------------------------------------------------------------------------
    \4\ U.S. v. River No. 3:99CR63AWT (D. Conn. Apr. 8, 1999) (Grand 
Jury Indictment); U.S. v. Basile No.3:99CR64AWT (D. Conn. Apr. 8, 1999) 
(Grand Jury Indictment).
---------------------------------------------------------------------------
    Illinois: Upon his confession, a man was convicted for the horrific 
murder of a 21 year old woman who was abducted on her way to work and 
whose mutilated body was later found in a cemetery. Authorities believe 
the man belonged to a cult blamed for the kidnappings, rapes, and 
mutilation murders of 18 Chicago-area women in the early 80's.\5\
---------------------------------------------------------------------------
    \5\ ``IL Executes Man for 1982 Murder,'' The Associated Press 
(March 17, 1999).
---------------------------------------------------------------------------
    Florida: The media reported that a serial murderer ``has a taste 
for petite brunettes.'' One by one, the bodies of his women victims 
were discovered horribly mutilated. Women in the community slept in 
groups with guns. According to USA Today, women left the college town 
by the hundreds, many refusing to return. The murderer was eventually 
identified when his DNA matched semen from the crime scenes.\6\
---------------------------------------------------------------------------
    \6\ Deborah Sharp, ``Trial begins in college slayings,'' USA TODAY, 
p. 3A (February 14, 1994).
---------------------------------------------------------------------------
    Florida: A woman ran from a fraternity house, naked and crying. She 
called the police, alleging that she had been raped and that it had 
been videotaped. The police found the video tape in which at least one 
man assaulted the woman while several of his fraternity ``brothers'' 
commentate for the video, stating ``This is what you call * * * Rape, 
Rape, Rape, Rape white trash,'' ``The night we rape a white-trash 
crack-head * * *,'' ``It is Rape-thirty in the morning,'' and ``Notice 
the struggle of the hands.'' After viewing the video, local police 
claimed the video clearly demonstrated consent and arrested the woman 
for making a false report. The men 7 have not been arrested.\7\
---------------------------------------------------------------------------
    \7\ See Statement of UF/SFCC Campus NOW (April 1, 1999) (on file 
with NOW LDEF); Brian Geller, ``Videotape a Focus of Controversy,'' 
Gainesville Sun (April 2,1999).
---------------------------------------------------------------------------
    Maine: A serial batterer was found to have violated that state's 
civil bias law for his bias crimes against women. Two former 
girlfriends and his ex-wife recounted his abuse, including severe 
physical battering, death threats, assault on his wife while she was 
pregnant, constant slurs and profanities, calling the women ``* * *,'' 
``* * *,'' and ``* * *,'' and telling them that they made him sick. He 
was ordered to stay away from the three women and to refrain from 
violence against other women.\8\
---------------------------------------------------------------------------
    \8\ Maine v. Cabana No. CV-98-034 (Maine Sup. Ct. Feb. 9, 1998).
---------------------------------------------------------------------------
    Massachusetts: A Massachusetts state court found a serial 
batterer's abuse constituted bias crimes against women under the 
state's bias crime law. Four women testified that his abuse included 
severe physical battering, rape, death threats, unlawful restraint and 
constant verbal abuse. He called the women ``* * *,'' ``* * *'', and 
``* * *'', and made derogatory comments that they and all women are 
weaker than men, and not as smart as men.\9\
---------------------------------------------------------------------------
    \9\ Massachusetts v. Aboulez No. 94-0984H (Mass. Sup. Ct. Mar. 14, 
1994).
---------------------------------------------------------------------------
    Michigan: A young woman was severely and repeatedly beaten by her 
husband. He kicked her with steel-toed boots, broke her arm, and 
repeatedly penetrated her vagina with the barrel of a loaded handgun, 
all the while threatening to kill her. After she left him he stalked, 
harassed, threatened, and assaulted her. She filed for divorce and got 
an order of protection, but the police refused to enforce the order. 
One day as she was on her way to work, he abducted her in public at gun 
point. He battered her, raped her repeatedly, and attempted to take her 
across state lines. She escaped and her testimony got him convicted. 
Four and one-half years later he was released from prison. Two weeks 
after that, he was back stalking, threatening, and harassing her. 
Perhaps realizing that the law does not protect her and those like her, 
the commission granted her an unrestricted license to carry a concealed 
weapon.\10\
---------------------------------------------------------------------------
    \10\ Pam Maples, ``Domestic Violence: Old Problem, New Attitudes; 
Attacks on Women are a Form of Hate Crime, Many Feminists Argue,'' p4B 
St. Louis Dispatch (June 13, 1993).
---------------------------------------------------------------------------
    Nevada: A woman befriended a man on the internet and agreed to meet 
him, but for security reasons insisted that he meet her at her parents 
home, where she lives. He and another man came to the home, handcuffed 
her, stuffed her into the trunk of the car, kidnapped, raped and 
assaulted her. They then drove her home telling her that no one would 
believe her. When she reported the assault, local police laughed at 
her, called her a liar, and told her that if she was lying she would 
have to pay for the cost of the lab tests. The case was not pursued 
until months later after a second victim, a seventeen year old girl, 
was lured to the same man's apartment, raped and escaped half naked. 
After learning how the case was handled, four other women in the 
community reported similar treatment by the local authorities.\11\
---------------------------------------------------------------------------
    \11\ The Associated Press, ``Woman: Nev. Cops Called Me a Liar,'' 
Newsday, p. A24 (March 24,1999).
---------------------------------------------------------------------------
    New Hampshire: Although convicted on five occasions for assaulting 
one woman, a batterer never served time for the assaults. Upon his next 
misdemeanor assault conviction, a trial court judge held that the 
batterer had a pattern of assaulting, terrorizing, and demeaning women 
and that his actions were motivated by gender bias. The judge used the 
state hate crime law to impose a sentence of more than double the jail 
time that would have otherwise been given for a misdemeanor assault 
conviction. As a result, the man will now serve two to five years in 
jail.\12\
---------------------------------------------------------------------------
    \12\ Laura Kiernan, ``N.H. Judge Applies Hate-Crimes Law in Case of 
Man's Assault on Woman,'' The Boston Globe, p.38 (June 13, 1993).
---------------------------------------------------------------------------
    Washington: Raped, restrained, battered, disfigured, threatened 
with a loaded shotgun, and verbally threatened and harassed upon 
attempting to leave, a Washington woman sought justice from the legal 
system. She sued her ex-husband under the VAWA civil rights remedy. The 
federal court judge found that the allegations of rape and sexual 
violence were sufficient to conclude that the violence was gender 
motivated. These allegations included gender-specific epithets, acts 
that perpetuated stereotypes of a woman's submissive role, severe and 
excessive attacks, especially during pregnancy, and acts of violence 
committed without provocation and at times when the plaintiff asserted 
her independence.\13\
---------------------------------------------------------------------------
    \13\ Ziegler v. Ziegler No. CS-97-0467-WFN (E.D. Wa. Sept. 24, 
1998).
---------------------------------------------------------------------------
    Virginia: A college student was raped in her dorm three times by 
two men within minutes of first meeting them. During a college 
disciplinary hearing, one of the men conceded that she twice told him 
``no'' before he raped her. The young woman eventually dropped out of 
school and returned home after the school permitted one of the alleged 
assailants to return on a full athletic scholarship with no discipline 
other than being required to attend a one-hour educational session. 
Although her VAWA civil rights case against the men was eventually 
dismissed on other grounds, each court to analyze the facts found 
evidence of gender bias. Indeed, one judge said the case had ``all the 
earmarks of a hate crime.'' \14\
---------------------------------------------------------------------------
    \14\ Brzonkala v. Virginia Polytechnic and State Univ. 132 F.3d 
949, 963 (4th Cir. 1997), rev'd on other grounds, 169 F.3d 820 (4th 
Cir. en--banc 1999).
---------------------------------------------------------------------------
                               __________

                Prepared Statement of Riki Anne Witchins

    My name is Riki Anne Wilchins, and I serve as the Executive 
Director of the Gender Public Advocacy Coalition (``GenderPAC''), which 
is an association of groups that share the goal of eliminating 
discrimination based upon gender, race and affectional preference. On 
behalf of GenderPAC, I want to thank Senator Hatch for holding this 
hearing on the subject of S. 622, the Hate Crimes Prevention Act (the 
``HCPA''), and for providing GenderPAC and other interested parties an 
opportunity to submit written testimony concerning the HCPA. GenderPAC 
strongly supports the HCPA, and we wish to thank Senator Kennedy and 
his colleagues in the Senate who are sponsoring this important 
legislation.
    GenderPAC collects reports of apparent hate crimes directed against 
persons whose physical appearance and/or manner of self-expression do 
not conform to our culture's bimodal (i.e., male or female) 
heterosexual norms and racial/ethnic stereotypes. The at-risk 
population to which I am referring includes not only mannish-appearing 
heterosexual women and feminine-appearing heterosexual men, but also 
persons who identify as gay, lesbian, bisexual, transgendered and/or 
intersexed, particularly those who are economically marginalized and/or 
persons of color. Millions of Americans fall within this group.
    Recently we have noted an increase in the frequency and viciousness 
of incidents directed against this population. For example, in January 
1999, 18-year old Donald Scott Fuller, who also was known as ``Lauryn 
Paige,'' was brutally stabbed to death in Austin, Texas. Among the 
multiple stab wounds on Fuller's body was a cut across his throat nine 
inches long and three inches wide. In October, 1998, Matthew Shepard, a 
young gay man, died in Laramie, Wyoming after he was beaten nearly to 
death with a pistol and crucified on a fence.
    Matthew's case illuminates the complexity of these incidents. His 
murder was portrayed as a hate crime directed against sexual 
orientation. Yet Matthew, like so many gay hate crime victims, also was 
small, blond, and slight in stature. That is, Matthew may have been 
targeted not only because of his sexual orientation, but also because 
of his ``feminine'' gender characteristics.
    These incidents and the many others like them merely are the most 
recent in a long and distressing stream of murders apparently directed 
against gender, affectional and/or racial difference. Unfortunately, 
local law enforcement authorities often share common stereotypes about 
this population, and sometimes cannot be counted upon to discharge 
their investigatory and prosecutorial duties in a fair and unbiased 
manner.
    An incident that occurred in 1994 illustrates this problem. Brandon 
Teena was an anatomically female person who self-identified and lived 
as a man in Falls City, Nebraska. Brandon was raped by two men, 
presumably to ``put her in her place,'' i.e., to demonstrate that he 
was a woman, not a man. The local sheriff, referring to Brandon as 
``it,'' refused to apprehend the rapists, and they murdered Brandon 
several days later, as they had threatened to do if he told anyone 
about the rape.
    Because they are members of a stigmatized population, people like 
Brandon Teena may encounter difficulties in obtaining the aid of local 
law enforcement authorities. Consequently it is important that 
alternative sources of assistance be available. The HCPA could provide 
one such alternative, because it would provide the Department of 
Justice with investigative and prosecutorial jurisdiction under 18 
U.S.C. Sec. 245 when bias against a victim's ``actual or perceived * * 
* gender [or] sexual orientation'' appears to motivate an incident 
involving willfull bodily injury, in which an appropriate connection 
with or affect upon interstate commerce is present.
    Although I am not sufficiently acquainted with the details of 
Brandon's case to understand whether it would have presented a 
sufficient connection to interstate commerce, it certainly appears to 
have been an incident motivated by bias against Brandon's perceived 
gender (i.e., the murderers perceived Brandon as a woman transgressing 
norms of gender expression and affectional preference, and apparently 
killed Brandon to teach him and--from the killers' point of view--other 
women like him, an object lesson about the penalty for nonconformity).
    Many of us see diversity as a source of strength and adaptability 
which is inextricably connected with the ideals that are central to the 
American experience. To put it another way, freedom means other people 
get to do what you don't like. Still, we recognize that this is a view 
not shared by all Americans. Some perceive diversity as a threat, and 
react to it hatefully and violently. We encourage the Senate to support 
the Hate Crimes Prevention Act as a reasonable, limited, and sadly, 
sometimes necessary federal response to such incidents.
            Respectfully submitted,
                                             Riki Wilchins,
              Executive Director, Gender Public Advocacy Coalition.
                               __________
                         Criminal Justice Legal Foundation,
                                       Sacramento, CA, May 7, 1999.
Senator Orrin Hatch,
Chairman, Senate Judiciary Committee
Dirkseon Office Building, Washington, DC.
    Dear Senator Hatch: The Criminal Justice Legal Foundation submits 
these comments regarding S. 622, the Hate Crimes Prevention Act of 
1999.
    As part of its mission to support the interests of victims of crime 
and the law-abiding public, CJLF has supported hate-crime laws. In 
particular, we filed a ``friend of the court'' brief in Wisconsin v. 
Mitchell, 508 U.S. 476 (1993), supporting the constitutionality of the 
Wisconsin hate-crime penalty enhancement statute and providing the 
argument which appears on pages 489-490 of the opinion. However, the 
bill presently before the committee raises concerns very different from 
those involved in the Wisconsin case.
    Crimes which one individual commits against another, with no claim 
or exercise of government authority and no commercial character, are 
generally matters for state and local authority. This is an essential 
part of America's federal system. The matters that touch people most 
closely are generally handled by the level of government closest to 
them, by officials more responsive to local concerns. See The 
Federalist Nos. 45 and 46 (Madison).
    Exceptions to the general rule require a compelling justification. 
When the local government itself deprives people of their rights or 
when, by systemic failure to prosecute crimes against disfavored 
groups, it deprives them of the equal protection of the laws, a strong 
case can be made for federal action. No such justification exists for 
the present bill, as section 2(9) effectively acknowledges.
    S. 622 seeks to prevent hate crimes through deterrence. To have a 
deterrent effect, the penalties must be significantly greater than 
those which would otherwise be imposed, and those greater penalties 
must be substantially likely to be imposed. This bill does not satisfy 
the first requirement in the most egregious cases, and it does not 
satisfy the second in any case.
    The new 18 U.S.C. Sec. 245(c)(1), as added by section 4 of the 
bill, is almost certainly unconstitutional. It has no state action or 
interstate commerce requirements at all. If cases prosecuted under this 
section are not dismissed in the trial court, any convictions obtained 
will be reversed eventually under United States v. Lopez, 514 U.S. 549 
(1995). Those cases would then have to be reprosecuted on stale 
evidence by state or local prosecutors, with all the difficulties that 
entails. The federal law would thus have the effect of decreasing 
rather than increasing the swiftness and certainty of punishment.
    The most egregious hate crimes are, of course, those in which the 
victim is killed. This bill punishes such crimes by life in prison. In 
most cases, that will be no increase at all, as murder is generally 
punished by life in prison. In some cases, it may be a decrease in 
punishment.
    Hate-crime murder is a capital offense in several states. See Cal. 
Pen. Code Sec. 190.2(a)(16); Del. Code, Tit. 11, Sec. 4209(e)(1)(v), 
Nev. Rev. Stat. Sec. 200.033(11). In many other states, torture murder 
or an equivalent is a capital offense. See, e.g., Wyo. Stat. 6-2-
102(h)(vii). For atrocious crimes such as the notorious cases in 
Wyoming and Texas, this bill provides a lower penalty.
    In states which have rejected the ``dual sovereignty'' doctrine, 
see, e.g., Cal. Pen. Code Sec. 656, a federal prosecution will preclude 
a state prosecution for the same offense. About half the states are in 
this category. See 3 W. LaFave and J. Israel, Criminal Procedure 
Sec. 24.5 (1984). Suppose, hypothetically, a case like the Jasper, 
Texas case were to occur in California after enactment of S. 622. This 
would be a capital offense under state law. See Cal. Pen. Code 
Sec. 190.2(a) (16) and (18). Yet if the United States Attorney chose to 
prosecute the case under the new 18 U.S.C. Sec. 245(c)(1), the maximum 
penalty would be life in prison, and the state prosecution would be 
precluded. In that event, this bill would have the effect of reducing 
rather than increasing the penalty for hate-crime murder and torture 
murder.
    This hypothetical is not idle speculation. This is essentially what 
happened in the notorious Unabomber case. The case fell under the 
overlapping jurisdiction of state and federal courts and was prosecuted 
in federal court. The United States Attorney accepted a plea bargain of 
life imprisonment over the strong objection of the Sacramento District 
Attorney. The Unabomber has permanently escaped the full measure of 
punishment for his cowardly campaign of terror as a result of the 
exercise of federal jurisdiction.
    This bill is clearly drafted with good intentions in an attempt to 
address a matter of grave concern. Good intentions, however, are not 
enough. The measure adopted should substantially contribute to 
redressing the problem. Simply transferring cases from the state to the 
federal system would accomplish little, and changing capital offenses 
to noncapital ones would be counterproductive.
    The beginnings of a better approach lie in sections 6 and 7 of the 
bill. Crimes of this type can and should continue to be prosecuted in 
state court. The federal government can assist by cooperation with 
local agencies, sharing information, and financial assistance. Drafting 
a model statute and finding research to determine what kinds of 
measures are most effective in reducing crimes of this type would also 
be appropriate avenues of federal involvement.
    I hope these thoughts are helpful to the committee. If I can be of 
any further assistance, please do not hesitate to call.
            Very truly yours,
                                         George Deukmejian,
                                                     Vice Chairman.
                               __________
                Michigan Citizens With Disabilities Caucus,
                                          Detroit, MI, May 7, 1999.
Re: Our testimony before the Senate judiciary committee Hearing on the 
Hate Crime Prevention Act of 1999

The Honorable Senator Orrin Hatch,
Chairman, Senate judiciary Committee,
Senate of the United States, Washington, DC.
    Dear Senator Hatch: Please include this as testimony in the record 
of the hearing on Hate Crimes on May 111 1999.
    The Michigan Citizens With Disabilities Caucus asks you to place 
additional wording in the Hate Crimes Prevention Act of 1999.

          Intentionally causing death or injury of patients without 
        their consent or discriminatory denial of care or treatment by 
        doctors, health care providers, administrators or staff of 
        health care facilities will also be considered hate crimes, 
        when such acts are motivated by prejudice against a patient's 
        race, religion, ethnicity, sexual orientation, gender, or 
        disability.

    We believe that so far as those with disabilities are concerned and 
to a great extent for other groups it is supposed to protect, the bill 
will be woefully incomplete,, unless it deals with hate crimes in 
health care facilities, including the violence of involuntary 
euthanasia (both active and passive).
    First, it is essential to say that we support the idea of special 
federal action against crimes of prejudice on the basis of disability, 
gender, and sexual orientation.
    Some good and intelligent people that we know argue that making a 
special category of crimes for those victimized because of prejudice, 
is actually a form of special treatment, because it gives them more 
protection than the rest of the population. Under this argument, it 
would be unfair to create a law giving a member of a racial lynch mob a 
higher sentence than a common murderer. We feel this misses two points.

  (1) Under our constitution, America has undertaken a commitment to 
    assure our citizens equal protection of the law, or in the words of 
    our Pledge of Allegiance ``liberty and justice for all.'' Victims 
    of intense and continuous prejudice are more vulnerable than the 
    rest if the population, more threatened. We have seen what has 
    happened in the old Yugoslavia. Those who are in particular 
    Jeopardy, because of prejudice need extra safeguards to ensure 
    their lives and security, if they are truly to have equal 
    protection of the law. If our society can give special protection 
    to endangered species of animals, it can certainly give special 
    protection to endangered groups of our citizens.
  (2) Crimes of prejudice represent attempts to undermine and subvert 
    equal Protection of the law. They represent a special danger not 
    only to the individual victims, but the basic values most Americans 
    believe in and passionately want to live up to.

    Hate crime legislation has also been criticized, because it 
penalizes someone not simply for criminal acts, but for the emotions 
that motivated the crime. This is far from new in our legal system. The 
difference between first and second degree murder is ``Premeditation,'' 
involving not only the motivation, but when the idea of committing the 
crime came into someone else's mind. I know of no one claiming under 
this system someone killed in a well planned out murder receives more 
consideration than a victim killed spontaneously in a crime of passion.
    The same thing is true of the definition of treason in our 
constitution. Under this, an act of sabotage with the intent of 
threatening the United States is treated much more severely than 
malicious destruction of property. It seems clear to us that acts of 
violence aimed at subverting equality under law and basic human rights 
ought to be punished more severely.
    Because of this, we do support the Hate Crimes Prevention Act of 
1999.
    Having said this, though, we must repeat there is one glaring 
defect in dealing with citizens who have disabilities. It does not 
apply to health care institutions or health care workers, doctors, 
nurses, or administrators. This would make the bill far less relevant 
to the lives of those with disabilities and the conditions that 
threaten them.
    If a group of neo-Nazi skinheads beat up a man in a wheel chair on 
the street, (as some have done all too recently in Germany), this would 
be a hate crime under the Hate Crimes Prevention Act and they could be 
prosecuted under it. If, on the other hand, the same group of neo-Nazi 
skinheads had the shrewdness to get employed in the staff of a nursing 
home and beat up patients there, this would not be considered a hate 
crime and they could not be prosecuted for violating the Hate Crimes 
Act. If a skinhead shot someone in a wheel chair, because he believed 
in the teachings of Hitler that people had no right to live, he could 
be prosecuted under this law. If, however, this particular skinhead had 
the patience to go through medical school, become a doctor, and 
administer involuntary euthanasia, this would not be applicable under 
this law.
    If the Congress of the United States determines in its wisdom to 
protect those with disabilities from crimes based on prejudice, it 
ought to consider where they are most threatened. Someone attacked on 
the street has an easier time getting away than Someone in a nursing 
home. Staff members and administrators in an institutional setting are 
likely to have more power over their patients than bigoted punks on the 
street. Brutality in an institution, which is suppose to provide health 
care, is a violation of trust, which strikes at the heart of society in 
a way no street attack or lynch mob possibly could.
    One congressional aide I spoke with argued that the hate crimes act 
deals with attacks on people using public facilities, because such 
attacks restrict the ability of certain groups to use such facilities. 
It is necessary, he noted, for a federal law to stop attacks on gays in 
college, because such attacks may make gays reluctant to go to college. 
He meant this as an argument for excluding health care institutions, 
but it is actually a compelling argument for getting them included. 
Health care institutions are public facilities. Attacks in health care 
institutions do indeed make people reluctant to use them. One woman 
told me if she got a certain illness, she would ``see Dr. Kevorkian,'' 
because she did not want to experience the brutality of a nursing home. 
Columnist Nat Hentoff noted one of his elderly relatives was afraid to 
go to the hospital and suggested that with attitudes in hospitals 
today, this may have had some justification.
    One must add that since most hospitals do receive federal funding, 
they are engaged in interstate commerce.
    Currently one of the most profound dangers those with disabilities 
are facing is that of involuntary passive euthanasia--denial of 
effective lifesaving treatment, not because of lack of funds, I might 
add, but because of pure, prejudice.
    Over 25 years ago, a young woman named Sondra Diamond wrote of how 
she was rushed to a hospital with third degree burns. Because she was 
born with cerebral palsy and was severely paralyzed, the doctors did 
not want to give her the routine treatment they gave to other patients. 
They claimed she was incapable of living ``a normal life.''
    Her parents made heroic efforts to convince the physicians she was 
already leading a normal life. They patiently showed them photos of her 
swimming and playing the piano and explained she was a junior in 
college.
    The doctors were still not convinced and finally treated her only 
because her parents insisted. Sondra recovered and lived a ``normal'' 
enough life to finish college and become a consulting psychologist. 
What is even more amazing, she was able to keep her sense of humor. 
However, as she ominously noted, hers was not ``an unusual case.''
    In December, 1996, in its policy on ``futile care,'' the American 
Medical Association noted some doctors wanted to withhold lifesaving 
treatment, which was both effective and long lasting, even when the 
patients and their families wanted it, because they felt the patients 
did not have a ``worth-the-effort quality of life.'' If they had their 
wishes, patients in the position of Sondra Diamond would be allowed to 
die, no matter how much she and her parents insisted on routine care. 
In short, to use star Trek terminology, patient freedom of choice is 
irrelevant. The wishes of the family are irrelevant. Care is futile and 
the patient's life is futile. End of discussion. what is most 
horrifying about these attitudes is the reaction of the AMA to them, 
The AMA, the Major medical organization in this country, declared it 
wanted to ``accommodate'' these views. It urged hospitals, nursing 
homes and other health care institutions to set up policies to 
determine who had a not ``worth the effort quality of life.'' In order 
to demonstrate its sense of fairness, the AMA also urged the 
establishment of in-house procedures where patients and their families 
could appeal such determinations. Under the AMA system, Sondra Diamond 
and her family would be magnanimously granted the opportunity to run 
through a special maze of administrators, directors, and duly appointed 
``ethical boards'' in order to justify her existence.
    The AMA policy statement also noted that patients should be allowed 
to transfer to another institution (if one would accept them). However, 
the AMA policy statement makes it clear that under its guidelines, if 
administrators remain unconvinced of the value of a patient's life and 
transfer is impossible, the institutions would not have to provide 
treatment. In such circumstances, the patient's only recourse would be 
to die quietly.
    According to Wesley L. Smith, attorney for the International Anti-
Euthanasia Task Force, hospitals are already using such procedures to 
``browbeat patients and their families.'' Smith also states that 
hospitals are convincing the courts to permit the values of doctors and 
medical ethicists to ``prevail over patient and family decision 
making.''
    Let us look again at the phrase ``worth the effort quality of 
life.'' in general conversation, the term ``quality of life'' usually 
refers to an individual's capacity to enjoy life or to benefit from 
life. Obviously, though, this is something the individual patient can 
decide better than anyone else. In the context of the AMA policy 
statement, it is obvious that by ``quality of life,'' the AMA means a 
judgment about the value of a patient's life. The AMA wants health care 
facilities to take it upon themselves to decide that some lives are not 
created equal, that some individuals have inferior ``quality'' second 
or third class, Grade B, C, and D lives, which it is not ``worth the 
effort'' to save.
    This is a direct assault on the principle of human equality, which 
Abraham Lincoln noted our nation was ``dedicated to'' from the very 
moment our forefathers ``founded'' it ``upon this continent.'' Allowing 
such policies to go unchallenged would strike at the heart of our 
constitution's commitment to equal Protection under the law.
    There is also a question of the laws of nations. Last year at a 
press conference on prison conditions, I asked an official of Amnesty 
international, whether it would be against international law to deprive 
a prisoner of health care, because the prison authorities were shocked 
at the crimes he committed. The Amnesty International representative 
declared it certainly would be. If it is against international law for 
physicians to judge a mass murderer or serial killer as an inferior 
quality life, which it is not worth the effort to save, then it should 
be equally reprehensible for health care workers, staff, 
administrators, bureaucrats or ethical boards to make the same, 
determination about people who have never violated the law or harmed 
another human being.
    In this now system, how will quality of life be determined? More to 
the point, whose life will be secure? Who will be recognized as a first 
class human being with a full quality of life?
    The AMA, policy statement is hauntingly vague. It states that this 
will be defined by each health care facility on the basis of 
``subjective'' values, ``institutional values'' and community values'' 
on a ``case by case basis.'' Obviously a patient who is treated in one 
hospital may be left to die in another. If things are done on a ``case 
by case basis,'' the health care facilities may be operating without 
any real consistency. If things are done under ``subjective values,'' 
it seems likely the facilities may be operating according to emotional 
prejudice. Can we trust anyone--even doctors--with such powers? Is it 
likely to result in enlightened decisions by philosopher kings?
    One answer may come from examining what has happened in the past. I 
have a copy of a 1984 letter by Dr. Richard Yerian, then chief medical 
officer for the Michigan Health Department, stating that the medical 
profession considered giving treatment to a ``malformed infant'' to be 
an ``ethical question,'' not standard procedure. This suggests some 
doctors considered it justifiable to let babies dies, because society 
did not like the way they looked. Our caucus chairperson, Tommy 
Meadows, notes the same thing has been done with adults. Meadows 
recalled that when his own wife had a stroke, doctors questioned 
whether it was worth while preserving her life, because she had been 
born with spina bifida and seemed to them ``deformed.''
    In the October, 1983 issue of the official organ of the American 
Academy of Pediatrics, doctors from the University of Oklahoma Health 
Services Center, wrote they actually used a pseudo mathematical formula 
to ``measure'' an infant's quality of life. The American Civil 
Liberties Union charged this formula allowed babies to die on the basis 
of race and class.
    What is more to the point, according to the International Anti 
Euthanasia Task Force newsletter for January-March 1999, a recent study 
by Georgetown University found that both the race and sex of patients 
influenced whether doctors recommend state-of-the-art cardiac testing 
for chest pain. The data showed that women and Black people were only 
60 percent as likely to receive cardiac testing for chest pain than 
white men. Under the test, Black women were recommended for the test 40 
percent as often. Under the test 720 doctors were presented a computer 
program and video interviews with patients complaining about chest 
pains, describing identical pain symptoms, identical health insurance 
coverage, the same professions and the same stress test results, 
identical ages, clothing and even hand movements. Lead researcher Dr. 
Kevin Schulman suggested that the findings indicated that doctors' 
racial and sexual bias affects the type and degree of care patients 
receive. As the international Anti Euthanasia Task Force puts it, this 
also suggests that physicians may view some patients as being ``more 
worthy'' of high-tech or expensive treatment than others, only because 
of their race and gender.
    In addition to this, Elizabeth Bauer, Director of the Michigan 
Protection And Advocacy Service, personally told me her agency found 
that gays and lesbians face discrimination in hospitals.
    Involuntary euthanasia through policies that define some lives as 
being of inferior ``quality'' and ``not worth saving'' would not only 
directly involve direct denial of equality on the basis of disability, 
but at the very least a de facto denial of equality on the basis of 
race, gender, and sexual orientation. This would affect most of the 
groups in the Hate Crimes Prevention Act.
    Our Chairperson, Tommy Meadows, had once warned other prosecuted 
minorities, ``Don't say this [situation with health care 
discrimination] is our problem. Our problem may become your problem.''
    That has come true with a vengeance.
    Several questions remain what is the reason for such prejudice 
against those with disabilities?
    Part of this undoubtedly comes from economic pressures to cut 
medical care by hospital administrators and HMOs.
    To be honest, though, this can not be the whole answer. I must ask 
why have so relatively few people working for civil rights been ready 
to speak out about the denial of our basic right to live, including 
those who have been most vociferous in their opposition to capital 
punishment? Indeed, to be perfectly honest, I have felt indications 
that some who consider themselves liberal and in the forefront of the 
struggle for equality actually accept the idea that those with 
disabilities are inferior quality lives.
    To be fair, we have been very grateful to find in the last few 
months, that our amendment has the pledged support of several civil 
rights organizations, associated with two pioneers of the civil rights 
movement, who put their lives on the line in the 60s, and names will 
live in history.
    However, I have to fear that on a psychological level, there is a 
growing Handicap Phobia. To some, the presence or even the existence of 
those with handicaps may represent unpleasant reminders of traits in 
themselves they want to repress or deny. Psychotherapist Alice Miller 
has noted that children who are valued only for their accomplishments 
or the reflected glory they give their parents may grow up feeling that 
without superior qualities, a person is ``worthless'' and can never be 
loved. To super achievers who push themselves toward success in 
medicine, those with disabilities may trigger uneasiness about 
``imperfections'' they were unable to accept as children. It may remind 
them of the child within them, the part of themselves which is 
incapable, dependent, and helpless. Sexual stereotypes are involved 
too. A person with a disability is often labeled ``less than a full 
man'' or ``losing feminine attractiveness.'' In these different ways, 
those with disabilities symbolize weakness and trigger other's fears of 
being weak.
    Miller suggests that once an individual associates a group of 
people with qualities he wants to kill in himself, it becomes, natural 
to wish such people dead. I must add that aversion can be easily 
disguised as pity. Someone takes for granted a group of People is 
without dignity and comes to believe the only way they can regain their 
dignity is in death. From there it is easy for him to convince himself 
that they are ``better off dead.'' After all, he notes, ``I would not 
want to live like that,'' which essentially means I would not accept 
myself, if I were like that.''
    Such prejudices will flourish unless they are confronted. it has 
been my goal today to try to confront them. The reason for the length 
of this testimony is that the fear that it may not be easy to do so.
    One final piece of speculation. Such attitudes are aggravated by 
the growing acceptance and glamorization of violence in society and 
serves to accelerate the process. Looking over the Littleton, Colorado 
tragedies, I cannot help but feel that the young killers in Colorado, 
who destroyed others in revenge for insults and taunts, and the 
perpetrators of teenage violence in many other areas of this country, 
who have killed to preserve their ``respect'' or sense of ``manhood,'' 
were reacting out of fear of weakness. Is it possible that the 
acceptance by society of the idea that weakness merits death in our 
institutions of healing, helped send a subliminal message that creating 
death was a way to avoid feelings of weakness and gain a sense of 
strength. How can we teach our youngsters respect for human life, when 
respected adults--adults in the foremost positions of the most 
prominent organization in the profession of healing, declare that some 
lives are ``futile,'' of inferior ``quality,'' and not worth the effort 
to save.
    When voting on this issue, I ask all of you on this committee to 
follow your duty to assure all citizens equal protection of the law.
    I ask those on the conservative side of the fence not to deny equal 
protection to citizens, you disapprove of on moral or religious 
grounds, such as gays or lesbians.
    I ask those on the liberal side of the fence not to deny equal 
protection of the law to citizens, like those with disabilities, just 
because it is not considered fashionable to fight for them. I ask you 
not to be swayed by the influence of medical elitists and their 
pretensions of creating a brave new world.
    As a representative of the Michigan Citizens with Disabilities 
Caucus, I ask you to approve the Hate Crimes Prevention Act of 1999 
with our proposed amendment.
    Enclosed are some articles on this subject. For further 
information, please feel free to call me. Thank you for allowing us to 
give this testimony and your patience in going through it.
            Sincerely,
                                     Ronald Seigel,
                                    First Vice Chairperson,
                        Michigan Citizens With Disabilities Caucus.
                               __________
                                            Ripple Effects,
                                    San Francisco, CA, May 7, 1999.
Senator Orrin Hatch,
Chair, Senate Judiciary Committee,
Senator Dirksen Office Building, Washington, DC.
    Dear Senator Hatch: Columbine has made clear that we need to take 
action to prevent violence and hate, and promote tolerance throughout 
our society.
    I am writing to express my support for the hate crimes legislation 
before your committee, and to let you know of a private sector 
initiative that is making a difference.
    For the past decade, I have developed and disseminated 
groundbreaking and clinically validated youth violence prevention 
programs, now used in over 60,000 US classrooms. My contributions to 
children's safety and health education have been recognized with a host 
of national awards, and eight regional Emmys. I have been a keynote 
speaker in 15 states, headed a national nonprofit, and have lectured 
widely on how to prevent youth violence.
    Two years ago I turned to technology as the best platform to create 
the next generation of prevention materials. I started a software 
company called Ripple Effects, and last fall we released Relate for 
Teens, an interactive CD-ROM that effectively prevents violence and 
hate, and promotes positive, prosocial behavior.
    Backed by ten years of research, Relate integrates best practices 
in prevention, intervention, and social learning into an easy-to-use, 
engaging, and media-rich database of social topics and life skill 
training. Leaders call the program a ``breakthrough,'' and it has won 
national acclaim and awards since its release.
    The day after the Columbine tragedy, policeman Jim Hernandez, a 
former gang member who now teaches life skills to teens in Concord, 
California high schools, asked his students: Could it happen here? 
Fearfully, students answered: Yes.
    ``The way you can prevent this,'' Hernandez told them, ``is to 
change the way you treat people. We need to move from mean-crude-and-
rude, to nice-kind-and-polite.'' Hernandez has been working with Relate 
for Teens to do just that. ``This program is helping to make nice-kind-
and-polite cool.''
    The United States is more diverse than almost any society in the 
world. With that diversity comes conflict and the need for skills to 
resolve it. In addition, a sea of change in the nature of families, 
work patterns, cultural imagery and sexual values have all contributed 
to a drastically different social-emotional landscape for today's 
youth, with higher incidences of social conflict than at any time in 
the past.
    In an era where many teens trust their computers more than they 
trust their parents, this program creates a much needed bridge between 
young people and the parents, teachers, friends, and community that 
surround them. I believe that this innovative product can have an 
impact on the lives of young people across the nation, preventing 
violence and prejudice, and promoting tolerance.
    This legislation expands federal jurisdiction to reach serious, 
violent hate crimes, and authorize grants to state and local 
prosecutors for combating hate crimes committed by juveniles. Ideally 
this should go even further to secure funds that support prevention 
programs in our schools.
    All sectors of society need to take action on this important and 
vexing issue. I urge you to vote in favor of this legislation.
            Yours truly,
                                                 Alice Ray,
                                                 President and CEO.
                               __________
                                           Victim Services,
                                        New York, NY, May 11, 1999.
Senator Orrin G. Hatch, Chairman,
Senator Patrick J. Leahy, Ranking Minority Member,
U.S. Senate Judiciary Committee, Dirksen Senate Office Building, 
        Washington, DC.
    Dear Senators Hatch and Leahy: I write to set out Victim Service's 
support of S. 622, The Hate Crimes Prevention Act, and ask that this 
letter be included in the record of the Judiciary Committee's hearing 
on that bill.
    Victim Services is the nation's largest victim assistance agency. 
Our mission is to heal the wounds of violence and prevent 
victimization. We run over 100 programs in courts, police precincts, 
domestic violence shelters, schools, and community offices. We assist 
over 200,000 clients in the City of New York each year. Our positions 
on policy and legislation derive directly from what we learn from our 
clients about their experiences of victimization and their needs for 
justice and healing.
    Victims of hate crimes reach out to Victim Services for help 
through many of our programs including our city-wide 24-hour crime 
victim hotline. We have been funded by the U.S. Department of Justice 
to develop a model community response to bias crime through a 
neighborhood-based working group comprised of activists from one of the 
most diverse communities in the nation--Jackson Heights, Queens. We 
know from our work against hate crimes that, when a bias attack occurs, 
it visits two traumas on the victim. First is the physical violence 
itself. Second is the crisis of recognizing that one's personhood has 
been stripped away; not one's wallet or car, but one's identity and 
very notion of self. This experience is devastating to the victim. Bias 
crimes are not only a criminal assault on the individual victim, but 
carry an additional message of hate to the entire community to which 
the victim belonged or was perceived to belong. The implications of 
this for each and every one of us are chilling.
    Numerous recent bias-related crimes, including the killings of 
James Byrd and Matthew Shepard and here in New York the crime-by 
shooting of Sonya Thompson in Albany, have raised our nation's 
awareness of the culture of hate and the violence to which it leads. 
While violent crime has deceased in general, bias crimes are on the 
rise. According to New York City Police Department statistics, for 
example, anti-gay attacks in 1998 were up approximately 83 percent over 
1997 figures.
    We urge the Senate Judiciary Committee to vote in favor of S. 622, 
which would strengthen the federal weapons against hate crimes send a 
powerful message that hate and the violence it breeds will not be 
tolerated as part of our American culture. It is essential that the 
federal criminal hate crimes law be expanded to acknowledge the reality 
that people are victimized because of their gender, disability, and 
sexual orientation. S. 622 would provide encouragement to individual 
state, like New York, that need to strengthen their own bias crime 
laws, and would allow the federal government to partner with states and 
localities in investigating and prosecuting hate crimes.
    On behalf of Victim Services, I thank you for considering our 
support of S. 622.
            Sincerely,
                                Gordon J. Campbell.
  

                                
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