U.S. GOVERNMENT PRINTING OFFICE

64–861 CC WASHINGTON : 2000

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

(

COMMITTEE ON THE JUDICIARY

ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina

CHARLES E. GRASSLEY, Iowa

ARLEN SPECTER, Pennsylvania

JON KYL, Arizona

MIKE DEWINE, Ohio

JOHN ASHCROFT, Missouri

SPENCER ABRAHAM, Michigan

JEFF SESSIONS, Alabama

BOB SMITH, New Hampshire

PATRICK J. LEAHY, Vermont

EDWARD M. KENNEDY, Massachusetts

JOSEPH R. BIDEN, JR., Delaware

HERBERT KOHL, Wisconsin

DIANNE FEINSTEIN, California

RUSSELL D. FEINGOLD, Wisconsin

ROBERT G. TORRICELLI, New Jersey

CHARLES E. SCHUMER, New York

MANUS COONEY, Chief Counsel and Staff Director

BRUCE A. COHEN, Minority Chief Counsel

(II)

(III)

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

Page

IV

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

(1)

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

2

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 wellintentioned 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

3

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.

4

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.

5

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,

6

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.

7

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.

8

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

9

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.

10

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

11

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

12

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.

13

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.

14

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.

15

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

16

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

17

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,

18

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

19

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

20

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. § 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. § 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. § 247 and other

federal criminal statutes that have no limitations analogous to the ‘‘federally protected activity’’ requirement of 18 U.S.C. § 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

21

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. Thirtyfour 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 211⁄2 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, hatemotivated violence. Second, § 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

22

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. 2See 18 U.S.C. § 245(b)(2)(B). 3The 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.

from working with state and local law enforcement agencies in the investigation and

prosecution of many of the most heinous hate crimes.1

S. 622, the Hate Crimes Prevention Act of 1999, would amend 18 U.S.C. § 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. § 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. § 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 AfricanAmerican 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. § 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.

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. § 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,

23

there was no apparent intent to deprive the victims of the right to participate

in any ‘‘federally protected activity.’’ The government’s proof that the defendants went out looking for African-Americans to assault was insufficient to satisfy the requirements of 18 U.S.C. § 245.

• 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. § 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. § 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. § 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 § 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 § 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 hosVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00027 Fmt 6633 Sfmt 6621 HATE SJUD4 PsN: SJUD4
24

4Statement 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). 5See 42 U.S.C. § 13981. 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.

tile 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. § 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:

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. § 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.

§ 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.

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

I want to emphasize that including gender in § 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

25

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.

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 § 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.

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. § 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. § 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

26

8See 18 U.S.C. § 245(a)(1).

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. § 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.

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

27

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

28

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

29

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 beVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00033 Fmt 6633 Sfmt 6602 HATE SJUD4 PsN: SJUD4
30

half 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

31

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 multistate 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

32

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

33

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 mesVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00037 Fmt 6633 Sfmt 6602 HATE SJUD4 PsN: SJUD4
34

sage 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

35

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

36

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

37

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

38

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.

39

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

40

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

41

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

42

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?

43

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

44

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

45

1See generally Wickard v. Filburn, 317 U.S. 111, 125 (1942); NLRB v. Jones & Laughlin Steel

Corp., 301 U.S. 1, 36–37 (1937).

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.

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

46

2The 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. 3Moreover, 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.

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

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

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 beVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00050 Fmt 6633 Sfmt 6621 HATE SJUD4 PsN: SJUD4
47

cause 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

48

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

49

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

50

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

51

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). 3See id. at 159.

4Jones v. Alfred H. Mayer Co., 392 U.S. 409,413 (1968). 5 117 S. Ct. 2157 (1997).

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

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

52

6See Akhil Reed Amar, Intratextualism, 112 Harv. L. Rev. 747, 821–27 (1999).

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). 8See Brzonkala v. Virginia Polytechnic Institute, 169 F.3d 820 ( 4th Cir. 1999) (en banc). 9See, 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). 10See 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).

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.)

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.

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?

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.

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

53

11See Akhil Reed Amar and Jonathan L. Marcus, Double Jeopardy Law After Rodney King,

95 Colum. L. Rev. 1, 4–27 (1995). 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.

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.)

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.

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, naVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00057 Fmt 6633 Sfmt 6621 HATE SJUD4 PsN: SJUD4
54

tional 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.]

(55)

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.

56

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.

§ 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 reVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00060 Fmt 6601 Sfmt 6621 HATE SJUD4 PsN: SJUD4
57

ports 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. § 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

58

1For 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).

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.

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.

§ 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

59

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

60

1See 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 Expandthe 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

61

ing 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). 2See Timothy Lynch, ‘‘Dereliction of Duty: The Constitutional Record of President Clinton,’’

Cato Institute Policy Analysis No. 271, March 31, 1997, pp. 37–43. 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. 4See Eric Pooley, ‘‘Portrait of a Deadly Bond,’’ Time, May 10, 1999, p. 26. 5See generally James B. Jacobs and Kimberly Potter, Hate Crimes: Criminal Law and Identity Politics (Oxford University Press, 1998).

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 § 8 surplusage simply cannot be correct.’’

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

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.’’

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

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

62

6See 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. 7See 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)).

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.

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

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.

63

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 antiGLBT 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 deVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00067 Fmt 6601 Sfmt 6621 HATE SJUD4 PsN: SJUD4
64

1See 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). 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).

fendant to argue that he attacked a victim because of his perceived sexual orientation, not because of his race.1

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 interstate 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

65

3See 18 U.S.C. § 2261 (1998); 18 U.S.C. § 2262 (1998). 4See 42 U.S.C. § 13981 (1997).

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. § 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.

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

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 genderbased 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

66

5For 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). 6For 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).

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

67

8 Id. at 1208. 9Letter 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). 11S. Rep. No. 90–721, reprinted in 1968 U.S.C.C.A.N. 1837, 1839. 12 Id., reprinted in 1968 U.S.C.C.A.N. 1840. 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). 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). 15See, 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).

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

The need for federal jurisdiction as a remedy to states’ failed responses to genderbased crimes starkly echoes the impetus in 1968 for the passage of 18 U.S.C. § 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:

[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

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.

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

68

16See Libertad v. Welch, 53 F.3d 428, 449 (1st Cir. 1995). 17See, 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). 18See, 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). 19See, 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). 20See 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). 21See, 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 ‘‘* * *’’). 22See, e.g., Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 n.3 (3rd Cir. 1990). 23See, 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’’). 24See, 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).

would mark a step towards compliance with these international human rights

standards.

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. § 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

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

69

25See, 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). 26See, 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). 27See, 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). 28See, 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). 29See, 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). 30See, e.g., United States v. Dunnaway, 88 F.3d 617, 618 (8th Cir. 1996). 31See 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). 32See 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). 33See S. Rep. No. 103–138, at 53 n.61 (1993) (‘‘1993 Senate Report’’). 34 18 U.S.C. § 245(a)(1). 35See S. 622 (4)(2)(B); H.R. 1082 (4)(2)(B).

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.

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.

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.

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

70

36See, 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). 37The 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). 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). 39See Lope, 514 U.S. at 562 (noting that jurisdictional element would ensure an otherwiseambiguous 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). 40See, 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. § 13981, which contains no such jurisdictional element. 41See, 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). 42See, e.g., 514 U.S. at 567. 43See, e.g., City of Riverside v. Rivera, 477 U.S. 561, 575 (1986) (noting ‘‘highest importance’’

of vindicating civil rights violations).

ADDING GENDER TO 18 U.S.C. § 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

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

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 genderbias 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 assaultVerDate 11-SEP-98 12:28 Jun 09, 2000 Jkt 000000 PO 00000 Frm 00074 Fmt 6601 Sfmt 6621 HATE SJUD4 PsN: SJUD4
71

1See 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. § 1985 (3) also demonstrate how circumstantial evidence

can establish bias motivation underlying violent acts. 2Suzanne Pharr, ‘‘Hate Violence Against Women: A Long Killing Season,’’ Violence Against

Women (National Network of Women’s Funds, Spring 1991). 3Trucker Describes Slaying to Jury,’’ The Eureka Times-Standard ( April 8, 1999).

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). 5 ‘‘IL Executes Man for 1982 Murder,’’ The Associated Press (March 17, 1999).

6Deborah Sharp, ‘‘Trial begins in college slayings,’’ USA TODAY, p. 3A (February 14, 1994).

ing 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.

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

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

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

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

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

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

72

7See 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). 8Maine v. Cabana No. CV–98–034 (Maine Sup. Ct. Feb. 9, 1998). 9Massachusetts v. Aboulez No. 94–0984H (Mass. Sup. Ct. Mar. 14, 1994). 10Pam 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). 11The Associated Press, ‘‘Woman: Nev. Cops Called Me a Liar,’’ Newsday, p. A24 (March

24,1999). 12Laura Kiernan, ‘‘N.H. Judge Applies Hate-Crimes Law in Case of Man’s Assault on

Woman,’’ The Boston Globe, p.38 (June 13, 1993). 13Ziegler v. Ziegler No. CS–97–0467–WFN (E.D. Wa. Sept. 24, 1998).

* * * 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 claimed the video clearly demonstrated

consent and arrested the woman for making a false report. The men 7 have not been

arrested.7

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

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

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

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

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

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

73

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).

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

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 mannishappearing 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. § 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

74

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 lawabiding 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. § 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

§ 190.2(a)(16); Del. Code, Tit. 11, § 4209(e)(1)(v), Nev. Rev. Stat. § 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 § 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 § 24.5 (1984). Suppose, hypothetically, a case like the Jasper,

75

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 § 190.2(a) (16) and (18). Yet if

the United States Attorney chose to prosecute the case under the new 18 U.S.C.

§ 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

76

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.’’

77

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

78

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

79

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,

80

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, antigay attacks in 1998 were up approximately 83 percent over 1997 figures.

81

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.

Æ