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S. HRG. 111–915 

CRIMES AGAINST AMERICA’S HOMELESS: IS THE 

VIOLENCE GROWING? 

HEARING 

BEFORE THE

SUBCOMMITTEE ON CRIME AND DRUGS 

OF THE

COMMITTEE ON THE JUDICIARY 

UNITED STATES SENATE 

ONE HUNDRED ELEVENTH CONGRESS 

SECOND SESSION 

SEPTEMBER 29, 2010 

Serial No. J–111–112 

Printed for the use of the Committee on the Judiciary 

( 

(II) 

PATRICK J. LEAHY, Vermont, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

ARLEN SPECTER, Pennsylvania 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

SHELDON WHITEHOUSE, Rhode Island 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

AL FRANKEN, Minnesota 

JEFF SESSIONS, Alabama 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JON KYL, Arizona 

LINDSEY GRAHAM, South Carolina 

JOHN CORNYN, Texas 

TOM COBURN, Oklahoma 

BRUCE A. COHEN, Chief Counsel and Staff Director 

MATTHEW S. MINER, Republican Chief Counsel 

SUBCOMMITTEE ON CRIME AND DRUGS

ARLEN SPECTER, Pennsylvania, Chairman 

HERB KOHL, Wisconsin 

DIANNE FEINSTEIN, California 

RUSSELL D. FEINGOLD, Wisconsin 

CHARLES E. SCHUMER, New York 

RICHARD J. DURBIN, Illinois 

BENJAMIN L. CARDIN, Maryland 

AMY KLOBUCHAR, Minnesota 

EDWARD E. KAUFMAN, Delaware 

LINDSEY GRAHAM, South Carolina 

ORRIN G. HATCH, Utah 

CHARLES E. GRASSLEY, Iowa 

JEFF SESSIONS, Alabama 

TOM COBURN, Oklahoma 

HANNIBAL KEMERER, Democratic Chief Counsel 

WALT KUHN, Republican Chief Counsel 

(III) 

C O N T E N T S 

STATEMENTS OF COMMITTEE MEMBERS 

Page 

Cardin, Hon. Benjamin L., a U.S. Senator from the State of Maryland ............. 1 

prepared statement .......................................................................................... 42 

WITNESSES 

Johnson, Hon. Eddie Bernice, a Representative in Congress from the State 

of Texas ................................................................................................................. 3 

Levin, Brian H., Professor, California State University, San Bernardino, San 

Bernardino, California ......................................................................................... 6 

Luna, Erik, Professor of Law, Washington and Lee University School of 

Law, Lexington, Virginia ..................................................................................... 9 

Manning-Moon, Simone, Decatur, Georgia ............................................................ 7 

Muhlhausen, David B., Research Fellow in Empirical Policy Analysis, Center 

for Data Analysis, The Heritage Foundation, Washington, DC ....................... 14 

Wierzbicki, Richard, Commander, Hate Crimes/Anti-Bias Task Force, 

Broward County Sheriff’s Office, Fort Lauderdale, Florida ............................. 12 

QUESTIONS AND ANSWERS 

Responses of Brian Levin to questions submitted by Senator Coburn ............... 24 

Responses of Erik Luna to questions submitted by Senator Coburn .................. 27 

Responses of David Muhlhausen to questions submitted by Senator Coburn ... 36 

Responses of Richard Wierzbicki to questions submitted by Senators Coburn 

and Klobuchar ...................................................................................................... 38 

SUBMISSIONS FOR THE RECORD 

Collins, Hon. Susan M., a U.S. Senator from the State of Maine, prepared 

statement .............................................................................................................. 46 

Hannah Rufus, San Diego, California, letter ........................................................ 47 

Johnson, Hon. Eddie Bernice, a Representative in Congress from the State 

of Texas, statement .............................................................................................. 49 

Lamberti, Al, Sheriff, Broward County, Florida, statement ................................ 51 

Levin, Brian H., Professor, California State University, San Bernardino, San 

Bernardino, California, statement and attachments ........................................ 54 

Luna, Erik, Professor of Law, Washington and Lee University School of 

Law, Lexington, Virginia, statement .................................................................. 131 

Manning-Moon, Simone, Decatur, Georgia, statement ......................................... 146 

Miscellaneous Coalition letter to Senator Cardin, joint letter ............................. 149 

Muhlhausen, David B., Research Fellow in Empirical Policy Analysis, Center 

for Data Analysis, The Heritage Foundation, Washington, DC, statement .... 156 

National Coalition for the Homeless, Washington, DC, statement and attachments 1–5 ............................................................................................................. 167 

National Law Center on Homelessness & Poverty, Washington, DC, statement ...................................................................................................................... 230 

O’Malley, Martin, Governor, State of Maryland, Annapolis, Maryland, statement ...................................................................................................................... 233 

Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the State of 

Florida, prepared statement ................................................................................ 235 

Statewide Legislation Status of hate Crimes Against the Homeless, chart ....... 236 

Wierzbicki, Richard, Commander, Hate Crimes/Anti-Bias Task Force, 

Broward County Sheriff’s Office, Fort Lauderdale, Florida ............................. 237 

Page

IV 

ADDITIONAL SUBMISSIONS FOR THE RECORD 

Submissions for the record not printed due to voluminous nature, previously 

printed by an agency of the Federal Government, or other criteria determined by the Committee, list: 

National Coalition for the Homeless, attachment 6, 

Nationalhomeless.org/publications 

Reports—Hate Crimes Against the Homeless: America’s Growing Tide 

of Violence 2009 

(1) 

CRIMES AGAINST AMERICA’S HOMELESS: IS 

THE VIOLENCE GROWING? 

WEDNESDAY, SEPTEMBER 29, 2010 

U.S. SENATE, 

SUBCOMMITTEE ON CRIME AND DRUGS, 

COMMITTEE ON THE JUDICIARY, 

Washington, DC. 

The Subcommittee met, pursuant to notice, at 10:01 a.m., in 

room SD–226, Dirksen Senate Office Building, Hon. Benjamin L. 

Cardin, presiding. 

Present: Senator Cardin. 

OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. 

SENATOR FROM THE STATE OF MARYLAND 

Senator CARDIN. Good morning, everyone. The Crime Subcommittee of the Senate Judiciary Committee will come to order. 

I first want to thank Senator Specter, the Chairman of the Crime 

Subcommittee, for allowing me to conduct today’s Subcommittee 

hearing. This is a subject that has been a priority for our Committee, and I appreciate Senator Specter’s leadership. 

When I hear the horrific stories about murders, assaults, and 

rapes committed against our Nation’s homeless, I ask myself: Is 

this really America? When I hear the story of Norris Gaynor being 

beaten to death by baseball bats while sleeping on a park bench, 

I ask myself: Where is all this violence coming from? 

When I heard about John McGraham being doused with gasoline 

and set ablaze, I was shocked and horrified that this could happen 

to a fellow human being and just wondered where we are heading. 

Now, these are just two examples of a larger problem. Last fall, 

I introduced the Hate Crimes Against the Homeless Statistics Act 

with Senator Collins in an effort to get uniform data collection on 

this type of violence. My bill would only require data collection on 

bias-motivated crimes against the homeless. What that means is I 

want the Federal Government to track how many crimes are being 

committed against the homeless just because they are homeless. 

Currently, the Hate Crime Statistics Act of 1990 requires the Department of Justice to collect data information from law enforcement agencies of crimes that manifest evidence of prejudiced based 

upon race, religion, sexual orientation, ethnicity, disability, gender, 

or gender identity. However, that was not always the case. When 

the law was first passed in 1990, the FBI was only required to collect data about crimes based upon race, religion, sexual orientation, 

and ethnicity. Then in 1994, Congress added disability, and just reVerDate Nov 24 2008 09:24 Mar 29, 2011 Jkt 064876 PO 00000 Frm 00005 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64876.TXT SJUD1 PsN: CMORC
2 

cently the Congress amended the statute again requiring data collections on gender and gender identity. 

Now, there are some individuals that believe that data collection 

is unnecessary. I disagree. I think the best way to develop a strategy to deal with a problem is to make sure that you have accurate 

information in order to be able to act. 

The National Coalition on Homeless has been documenting these 

bias-motivated acts of violence for over 11 years. According to their 

numbers, bias-motivated crimes against the homeless are pervasive 

and growing. Just last year, 43 people died, making 2009 the deadliest year for attacks on homeless people. 

Now, one might think that 43 is not such a great number. But 

when you compare that number to the information that we have 

on other acts under the Hate Crimes, that number is much, much 

larger than the others that have suffered death as a result of hate 

crime activities. 

According to the FBI hate crime statistics, seven homicides were 

classified as hate crimes in 2008. In that same year, 27 fatal attacks occurred on homeless persons, according to the National Coalition for the Homeless. The National Coalition for the Homeless 

has done an amazing job trying to track and document all those 

crimes from the greater public. But they are not law enforcement. 

We need to have consistent information that is collected by the FBI 

so that we know the extent of the problem relative to other areas 

of concern. 

According to the Department of Housing and Urban Development’s latest report to Congress, approximately 640,000 persons 

were homeless on any given night in 2009, and roughly 1.5 million 

people, or one out of every 200 Americans, spent at least one night 

in a shelter during 2009. Veterans account for about 20 percent of 

our homeless population. Families displaced because of domestic violence make up 28 percent of our homeless population. But the 

fastest-growing number of people who are homeless by demographics are families with children. It is our responsibility to 

strengthen programs to reduce the number of homeless in all categories here in America. 

As we see the number of families increase, we also see the number of available shelters decrease. For example, in Baltimore County, we have seen a rise in homeless families, but a lack of space 

to provide them with safe housing. According to recent statistics, 

shelter space increased 25 percent last year. But according to the 

Maryland Department of Social Services, the number of homeless 

parents seeking emergency housing has more than doubled in the 

past 5 years. 

So here is what we do know. We know that violence is occurring 

against this population. We know that the unhoused population in 

America is growing. One can make an educated guess that these 

two facts may lead to more victims. But I do not want to guess. 

I want to get the facts. That is why I believe Congress should enact 

the law to allow us to get the information. 

This Nation was founded on the principles that Government 

must seek a more perfect union for the people and the Government 

must provide for the general welfare so that every man and woman 

3 

can live in security and liberty. America’s homeless are mothers 

and fathers, brothers and sisters, veterans and workers. 

Robert Kennedy once said if you make some contribution to 

someone else to improve their life, that is what you should be 

doing. What will history say about us on this issue? Did we the 

people help to promote the general welfare of the homeless? What 

steps did we take to stop the violence? 

America’s homeless deserve the same respect and dignity that we 

share sitting here today. I look forward to the testimony of our witnesses as we develop a record in this Committee to take action to 

protect America’s vulnerable. 

With that, let me first turn to my colleague, Representative 

Eddie Bernice Johnson. I had the opportunity to serve with her 

when I was in the House of Representatives. She is a passionate 

leader on issues of people who need our help. She has been the 

voice of many people who otherwise would not be heard in the 

chambers of the Congress. It is an honor to have her before our 

Committee. 

STATEMENT OF HON. EDDIE BERNICE JOHNSON, A 

REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS 

Representative JOHNSON. Thank you very much, Senator Cardin, 

and thank you for inviting me to testify on this important issue. 

Each year there are hundreds of individuals who are targets of 

violent crime based solely on their appearance, means, or lifestyle. 

Each and every violent crime is traumatic. However, hate crimes 

are not only meant to physically harm the victim, but degrade all 

individuals of similar identity. They instill a pervasive sense of fear 

within that community. 

Over the past few years, there has been a great deal of attention 

given to enhanced enforcement of hate crimes. Unfortunately, there 

has been a significant omission during this debate. One of the most 

frequent but least discussed categories of hate crimes are those 

which target the homeless. 

Between 1999 and 2010, there were more than 1,000 bias-motivated attacks committed against the homeless; 291 of these attacks 

were homicides. That is more than twice the number of homicides 

committed in all other hate group categories combined. 

The thread that holds all these crimes together is the sheer violence and disregard for human life. In April of last year, a homeless woman confined to a wheelchair was repeatedly raped in Seattle, Washington. The man who raped her told her, ‘‘I can rape 

you and get away with it...You’re homeless? No one cares about 

you.’’ 

Last year in my home State of Texas, a 41-year-old homeless 

man was sitting on a bench near the University of Texas at El 

Paso. Four unknown males assaulted him and lit him on fire. He 

survived but lives with serious burns. This was one of six non-fatal 

attacks that involved setting a homeless individual on fire. These 

six attacks occurred in 2009 alone. 

In 2009, there were 43 homeless men and women who were murdered because they were homeless; 90 percent of those deaths were 

caused by stabbing, blunt force, or strangulation. 

4 

A misconception is that these attacks happen to belligerent 

bums. However, many of these individuals were sought out by their 

attackers. Some victims never even spoke to their attacker before 

they were killed. 

In the 110th Congress, I introduced the Hate Crimes Against the 

Homeless Statistics Act. This bill was reintroduced in this Congress along with a Senate companion bill which is sponsored by 

Senators Cardin and Collins. The sole purpose of this bill is to direct the FBI to add the category of homelessness to their hate 

crimes statistics. 

The National Coalition for the Homeless has done an outstanding 

job collecting data on homeless hate crimes over the past 10 years. 

However, Federal recognition is essential in order to understand 

and curb this type of violence. 

The Federal Government has fallen behind the States on this 

issue. Currently, there are four States who already recognize homelessness as a category of hate crime. Several more have legislation 

pending, and this is not just in Democrat politically run States. 

Florida had a Republican-elected Governor and a Republican legislature at time their homeless hate crimes bill was signed into law. 

If Congress continues to not take a stance on this issue, we send 

the message that we are willing to look the other way. Treating 

homeless individuals rudely or inhumanely is seen as acceptable by 

far too many Americans. It is the one group where it is still acceptable in most circles to disparage. How do we end this if even Congress is unwilling to treat these individuals equally? 

Senator Cardin, I thank you for being a true leader on this issue 

and for allowing me to testify in front of this Committee today. 

[The prepared statement of Ms. Johnson appear as a submission 

for the record.] 

Senator CARDIN. Well, Congresswoman Johnson, thank you for 

your testimony, but more importantly, thank you for your leadership on this issue in the Congress, and I am glad you pointed out 

that this is bipartisan legislation. 

We do have a letter that I am going to ask unanimous consent 

to be made part of the record by Congresswoman Ros-Lehtinen in 

support of this legislation, and from Senator Collins, who cosponsored the bill with me, we have a letter from Senator Collins in 

support of the legislation that would require the FBI to collect information concerning attacks against the homeless. Without objection, those two letters will be made part of the record. 

[The letters appear as a submission for the record.] 

Senator CARDIN. I want to share with you a blurb that I found 

in a popular men’s magazine that is absolutely appalling. It reads, 

‘‘Hunt the homeless. Kill one for fun. We are 87 percent sure it is 

legal.’’ 

Now, has society become so desensitized to the glorification of violence that an ad like that could appear in a magazine in our country? To me this is just shocking that something like this could happen in the United States. 

You mentioned what happened in Texas. It was not one episode; 

it was several episodes. The same thing has happened in Maryland. 

I would hope that we were beyond this, but until we get the information as to whether ads like this are having impact, it is difficult, 

5 

I think, for us to develop a strategy to deal with it. That is the reason I introduced the legislation. I note your concerns. I think we 

need to develop a workable strategy to protect all our vulnerable 

citizens, and the homeless, just because they are homeless, are 

being victimized, and that needs to stop in America. 

Thank you for your testimony. I appreciate it very much and look 

forward to working with you. 

Representative JOHNSON. Thank you. 

Senator CARDIN. We will now turn to our second panel, and I will 

introduce them in the order in which they will be speaking, and 

you all can come forward and take your seats. 

First we have Professor Brian Levin, an associate professor of 

criminal justice and director of the Center for the Study of Hate 

and Extremism at California State University, San Bernardino, 

where he specializes in the analysis of hate crimes, domestic and 

international terrorism, and related legal issues. He is a leading 

academic expert on violence against the homeless and has contributed to the National Coalition for the Homeless 2010 report entitled, ‘‘Hate Crimes Against the Homeless: America’s Growing Tide 

of Violence.’’ 

We have Richard Wierzbicki, who is the commander in the Department of Law Enforcement at the Broward County Sheriff’s Department in Fort Lauderdale, Florida. Since September 2008, he 

has headed the Broward Sheriff’s Hate Crimes Task Force. He testified this year in front of the Florida House and Senate subcommittees in favor of adding the homeless to the Florida’s hate 

crimes statute. 

We have Simone Manning-Moon, who is the sister of Norris 

Gaynor, who died at the age of 45 after he was brutally attacked 

and killed by three teenagers by bats in Fort Lauderdale in 2006. 

This incident was caught on a surveillance camera on the campus 

of Florida Atlantic University. The three offenders who were involved in the beatings of two other homeless men received sentences ranging from 15 years to life in prison. 

We have David Muhlhausen, an expert on the criminal justice 

programs at the Heritage Foundation. He has testified frequently 

before Congress on the efficiency and effectiveness of law enforcement grants administered by the United States Department of Justice. Mr. Muhlhausen joined Heritage in 1999 after serving on the 

Senate Judiciary Committee, which is certainly a major part of 

your resume, where he specialized in crime and juvenile justice 

policies, but perhaps the most important part of his resume, he has 

a doctorate in public policy from the University of Maryland, Baltimore County, and a bachelor’s degree in political science and justice studies from Frostburg State University. 

Erik Luna is a professor of law and an alumni faculty fellow at 

the Washington and Lee University. Upon graduation from law 

school, Professor Luna was a prosecutor in the State San Diego 

District Attorney’s office. He has served as the senior Fulbright 

scholar to New Zealand, where he taught at the Victoria University 

Law School and conducted research on sentencing alternatives. 

Professor Luna graduated summa cum laude from the University 

of Southern California, received his J.D. with honors from Stanford 

Law School, where he was editor of the Stanford Law Review. 

6 

We will start with Mr. Levin, Professor Levin. 

STATEMENT OF BRIAN H. LEVIN, PROFESSOR, CALIFORNIA 

STATE UNIVERSITY, SAN BERNARDINO, SAN BERNARDINO, 

CALIFORNIA 

Mr. LEVIN. My name is Professor Brian Levin, and I am director 

of the nonpartisan Center for the Study of Hate and Extremism at 

California State University, San Bernardino, where I teach in the 

Department of Criminal Justice. And let me just add I am a full 

professor, if I may. While I am here in that capacity, I would also 

like to note that I serve as an unpaid independent adviser to the 

National Coalition for the Homeless. I want to personally thank 

Chairman Benjamin L. Cardin, Ranking Member Lindsey Graham, 

Chairman Arlen Specter, and the other members of the Committee 

for the privilege of testifying on the scourge of violence directed 

against homeless Americans. I have analyzed hate crime for almost 

25 years, written extensively on the topic, compiled national hate 

crime statistical surveys, testified before the House, authored Supreme Court briefs, trained law enforcement, and have advised policymakers throughout North America and Europe. 

The National Coalition for the Homeless has worked tirelessly for 

the last 28 years to not only end homelessness but to ensure broad 

protection of homeless individuals. Since 1999 the NCH has monitored and recorded acts of violence against our country’s homeless. 

My testimony today in support of Senate bill 1765, the Hate 

Crimes Against the Homeless Statistics Act,’’ will address issues 

relating to the inclusion of homeless status as a category in hate 

crime statutes, but specifically its inclusion in Federal data collection undertaken pursuant to the Hate Crime Statistics Act. Access 

to this type of objective official data is crucial for a society to assess 

the scope of criminality, implement policies, allocate resources, and 

craft legislation. From the onset it is important to consider that 

over the last three decades, both penalty enhancement laws and 

specifically data collection statutes have been expanded to cover 

additional group categories as new information arose to support 

such inclusion. It is my hope that the outline I provide today regarding the characteristics and prevalence of anti-homeless hate violence will correct a glaring error in current Federal efforts. 

The homeless face a rate of victimization that far exceeds that 

of other groups. Indeed, it is probably among the highest in the 

Western industrialized world. The more reliable hate crime statistics arising from homicide data and victimization studies indicate 

that we have a vulnerable population here, not just for crime in 

general, but for hate violence as well. 

Two key questions need to be addressed regarding the issue of 

discriminatory violence against the homeless. First, does the actual 

level of bias violence against the homeless justify a statutory 

change? And, second, does the category of homelessness fit the traditional framework of hate crime legislation and share material 

similarities with currently covered groups? 

It must be stressed that the modest data collection proposal presented here today does not increase punishment or change broad 

policies. Because we already have an operational national framework for hate crime data collection, it does not require us to create 

7 

an additional bureaucracy. What it does allow us to do is get essential information about a qualitatively distinct form of crime that 

significantly affects a distinct class of victims. 

Emma Lazarus’ poem, ‘‘The New Colossus,’’ is inscribed on our 

Statue of Liberty. It says: ‘‘ 

Give me your tired, your poor, your huddled masses yearning to 

breathe free, The wretched refuse of your teeming shore. Send 

these, the homeless, the tempest-tost to me. I lift my lamp beside 

the golden door!’’ 

However, today, unfortunately, studies indicate that America is 

not necessarily a hospitable place for our homeless citizens. Studies 

and surveys repeatedly indicate an annual risk of criminal victimization as high as 66 to 82 percent, as I said, about the highest for 

any subgroup in the Western world. 

One thing that I think is key here—and I believe it is important 

to differentiate—is that we are talking about hate violence. We 

have excluded in this research acts, of insurance fraud where 

homeless people were targeted for death in Los Angeles, or, for instance, a case in New York, where we saw homeless people being 

kidnapped to deal drugs for notorious drug dealers. 

What we have seen over the last decade is a clear and disturbing 

pattern that shows the homeless population face an additional risk 

of discriminatory violence. These unprovoked hate attacks primarily by domiciled young assailants are not motivated by robbery, 

personal disputes, or drug dealing. These bias motivated attacks 

have claimed the lives of over 288 men and women nationally over 

the last decede. It is the homicide data that is regarded as the most 

reliable and useful, and I think we have to separate it out from 

other data and, indeed, compare apples to apples and oranges to 

oranges. 

In closing, I would just like to say this: I can only marvel at how 

proud my departed refugee Russian immigrant grandmother and 

World War II era POW father would be to see the country they 

loved so very much—and indeed my son who I brought here from 

California, to see the majesty of your chamber—working to extend 

the promise of Emma Lazarus’ vision to embrace yet a new generation of Americans who, like my grandmother and my POW father 

who fought the Nazis, who like them need protection from the 

scourge of unrestrained violent prejudice. 

I want to thank you so much. I am so honored to be here and 

to answer any questions that you may have in the brief time that 

we have here today. 

[The prepared statement of Mr. Levin appear as a submission for 

the record.] 

Senator CARDIN. Professor Levin, thank you for being here. It is 

nice to have your son with us here also today. 

I think we will just proceed down the witness table, so next we 

will hear from Simone Manning-Moon. 

STATEMENT OF SIMONE MANNING-MOON, DECATUR, GEORGIA 

Ms. MANNING-MOON. Thank you, Senator Cardin. It is an honor 

to be here today. 

To Honorable Members of the Committee, my name is Simone 

Manning-Moon. I extend warm greetings and my gratitude for the 

8 

opportunity to speak before you today. I also bring greetings from 

my parents, Sam and Georgia Gaynor, who still miss and grieve for 

their son Norris—my brother. It is a tragic twist of irony that my 

big brother wanted only to live a rather anonymous existence and 

mind his own business, and yet we are here today before this esteemed Committee in our Nation’s capitol to discuss him and to put 

a name and a face to him—or rather, to all of those who find themselves in my brother’s position, claiming the sky as their temporary 

ceiling. 

Despite all that would come later, my parents demonstrated 

their love for us in the most supreme way. Though not related by 

blood, we were both adopted when my parents had so much love 

to give and wanted children to give it to. We knew from an early 

age that we were adopted and loved immeasurably. We grew up 

under the tutelage of a United States Chief Petty Officer in the 

Navy and a mother who imparted a family structure which included study habits, responsibility for household chores, and a respect for those in authority. We were, in effect, no different than 

I suspect many of you who underwent the same upbringing. This 

with perhaps one exception: my brother was troubled. No one could 

quite pinpoint the issue. He was often hyperactive, sometimes 

angry, and seemed to look for something he did not have, and yet 

he expressed satisfaction with his surroundings. I took my cues— 

and much advice—from him oftentimes. Once my parents sat us 

down and earnestly explained the circumstances of how we came 

to be their children, going so far as to offer to help us if we wanted 

to find our ‘‘real’’ parents. I remember staring at my brother Norris 

when he declared his logic at the table: Why would we look for parents when we already had them? When those ‘‘real’’ parents gave 

us up? He was not interested. And because he was my big brother, 

nor was I. We were raised with high expectations, a low tolerance 

for things unproductive and considered foolish. And, therefore, it 

was no surprise when, upon my brother’s high school graduation, 

he was expected to move in the direction of manhood and self-sufficiency. After all, this was our family mantra. 

At that point, Norris’ tumultuous journey began. He faced many 

things: his service in the United States Army, incarceration, drug 

abuse, the realization that he was not mentally healthy, and his 

struggles to find himself. For as many years as he was homeless, 

he was a contributing, upstanding member of society. He worked 

every day, kept himself in great physical condition, and otherwise 

lived what you may call a normal existence. But he was not well. 

Eventually he came to see that. I suppose I should be grateful that 

he realized many things before wooden bats and rake handles 

snuffed out his life. 

Norris Jay Gaynor. Not ‘‘the homeless guy who was murdered 

that night;’’ not ‘‘the one they beat to death;’’ not ‘‘that homeless 

fatality.’’ I implore you to actually say his name: Norris Gaynor. 

Son, brother, uncle. The one upon whom I called on for counsel and 

who called me from pay phones so that he could give me advice. 

I beg your pardon. 

The son my parents referred to as not ‘‘homeless, but simply far 

from home.’’ My brother Norris who, when our younger brother Jerome died of liver cancer many years ago when we were 12 and 13, 

9 

huddled in a corner with me to talk about how much we were going 

to miss him. 

Norris the artist. Norris the political news junkie in his later 

years, who knew more about local, State, and Federal politics than 

I did, and who missed, because of some notion that it was OK for 

people to beat and kill those on the street, what would have been 

the most important Presidential election of his lifetime—by mere 

months. He surely would have continued to discuss it to this day 

and apply his honed critical thinking skills to the State of Washington in 2010. How ironic that he of all people is not here to witness the current state of affairs. 

His name is Norris Jay Gaynor. He was born in 1960. He was 

raised in a fine family. He had his problems, but he manned up 

and declared that he would not be a burden on anyone. When he 

learned later in his life that due to a variety of circumstances he 

could apply for Social Security benefits, he refused. ‘‘I can’t do 

that,’’ he would say. ‘‘I’m physically able to take care of myself.’’ 

This is the person those men killed that night. This is the so-called 

bum. And the supreme irony? The taxpayers are now taking care 

of his bat-wielding murderers. And make no mistake: He was murdered because he was homeless. He was attacked because he was 

asleep on a park bench, minding his own business. 

To the direct point of the proposed legislation we are discussing 

today, he was murdered because people resented the homeless and 

thought that they could continue to prey on them and get away 

with it. 

I thank you for your time. 

[The prepared statement of Ms. Manning-Moon appear as a submission for the record.] 

Senator CARDIN. Well, let me thank you for your testimony. We 

hear statistics and it is important to understand that every one of 

those statistics is a person and a family. Norris Jay Gaynor was 

a person, a brother, a son, and we thank you for sharing your relationship with him so that we understand that we are not just talking about one person; we are talking about a family, and many 

families in this country. 

Professor Erik Luna. 

STATEMENT OF ERIK LUNA, PROFESSOR OF LAW, WASHINGTON AND LEE UNIVERSITY SCHOOL OF LAW, LEXINGTON, VIRGINIA 

Mr. LUNA. Thank you very much, Senator Cardin—— 

Senator CARDIN. I think your mic is not on. 

Mr. LUNA. Got it. Thank you. Thank you, Senator Cardin. Thank 

you for the opportunity to come and speak today on this very important topic. 

The plight of America’s homeless is truly heartbreaking and has 

only become worse in recent years as a result of the Nation’s financial crisis and the rise of home foreclosures and evictions. The happenstance that has left many people homeless underscores the 

proverb ‘‘There but for the grace of God go I.’’ And the compassion 

and tireless efforts of advocates for the homeless, including those 

in this room, confirm the fundamentally good-hearted nature of the 

American people. 

10 

Against this background, it is hard not to be flabbergasted and 

repulsed by the crimes of violence committed against the homeless, 

as described in media accounts and in the recent report by the National Coalition for the Homeless. The same can be said of the brutal acts that propelled the federalization of so-called hate crimes: 

the murders of Matthew Shepard in Wyoming and James Byrd, Jr., 

in Texas. 

These events greatly disturbed conscientious citizens across the 

Nation. No decent American could argue against the investigation, 

prosecution, conviction, and punishment of those who commit such 

crimes. And, of course, that was never a question before this august body, nor was it a genuine issue among decent scholars, policy 

analysts, and the general public. Instead, the problem was the alleged necessity and the potential consequences and the ultimate 

constitutionality of the Hate Crimes Prevention Act. 

Now, that statute is not directly at issue today. Instead, as has 

been noted, the hearing is concerned with whether to amend a 20- 

year-old, the Hate Crime Statistics Act, to include ‘‘homeless status’’ as a protected class for purposes of Federal law enforcement’s 

tracking of hate crimes across the Nation. 

Here I would like to briefly discuss the collection of hate crime 

statistics, including hate crimes against the homeless, and the justification for federalizing hate crimes, including those against the 

homeless. 

The first issue goes to the heart of the bill before the Senate and 

is a question with regards to hate crime statistics in general. The 

second issue, though not directly before this body, looms over this 

entire hearing. 

The guidelines promulgated pursuant to the Hate Crime Statistics Act described a hate crime as a ‘‘criminal offense committed 

against a person or property which is motivated, in whole or in 

part, by the offender’s bias.’’ In turn, bias is defined as a 

‘‘preformed negative opinion or attitude toward a group of persons 

based on their race, religion, disability, sexual orientation, or ethnicity/national origin.’’ The guidelines then provide a series of criteria that might support a finding of bias, and many of these items 

seem commonsensical. Others are less obvious or might raise legal 

questions if used at trial, such as whether a ‘‘substantial portion 

of the community where the crime occurred perceived that the incident was motivated by bias.’’ It is hard to imagine the evidentiary 

basis, let alone constitutional argument, for admitting testimony or 

documents about popular sentiment in order to prove that a crime 

has been committed. 

The guidelines also provide vignettes intended to demonstrate 

the appropriate classification of hate crimes. The vignettes would 

raise some serious constitutional issues if they involved an actual 

hate crime prosecution in Federal courts, but that is not actually 

what is going on here. Consistent with the Congressional mandate, 

the FBI guidelines make clear that their purpose is for data collection only. 

And this does not guarantee accurate classification. Offenders 

have all sorts of motivations, conscious and unconscious, including 

cynical beliefs about those who are in some way different from 

themselves. When hate crimes turn on one-word slurs or nonVerDate Nov 24 2008 09:24 Mar 29, 2011 Jkt 064876 PO 00000 Frm 00014 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64876.TXT SJUD1 PsN: CMORC
11 

verbal expressions, the classifier is placed in the position of 

guesstimating the level of bias in the sometimes murky, often 

adrenalin-filled circumstances of a criminal episode. The standard 

of proof vaguely resembles ‘‘probable cause,’’ the amount of evidence needed to conduct a search and seizure, for example, rather 

than the constitutionally mandated standard for conviction at trial. 

But again, this is of no constitutional moment when the goal is 

categorization of statistics rather than condemnation of defendants. 

And the inherent limitations of these statistics are—or should be— 

understood and acknowledged by policymakers; and as long as any 

errors in classification are random, the data provided under the 

Hate Crime Statistics Act give a reasonable overall picture with all 

the caveats attached. 

A far larger problem lies with the data provided by advocacy 

groups, who use disparate or loose standards, or no real standards 

at all, in gathering and presenting their data. Some groups count 

as hate crimes all reports, even if they do not amount to a criminal 

offense or only involve bias-motivated comments, and regardless of 

the source of information. Unfortunately, some of these problems 

appear to exist in the National Coalition for the Homeless’ recent 

report, which is otherwise very laudable, on crimes against the 

homeless. 

There seems to be a conflation of two potentially overlapping but 

importantly distinct concepts: crimes against the homeless and 

hate crimes against the homeless. 

The vignettes in the report often share two common things: they 

are extremely sad, and I want to emphasize that; but they are 

often based on limited or no hard facts indicating that the incidents 

were motivated by bias against the homeless; or in some cases that 

a crime had even been committed. Instead, the incidents are often 

loaded with speculation or honest acknowledgments that the facts 

and motives remain unclear. 

In fact, one incident in the report listed as a non-lethal attack 

did not involve an attack at all, but instead detailed an admittedly 

repulsive Internet posting that in and of itself could never be the 

basis for a prosecution under the Constitution. 

Now, to be clear, the authors of the report may have additional 

information, evidence that would lead a reasonable and prudent 

person to conclude that the episodes were not only crimes but were 

hate crimes and based on criminal motivate, in whole or in part. 

But this information is not always obvious from the report. 

Let me also be clear that I do not believe that the well-intentioned advocates for the homeless are trying to mislead anyone, 

and I assume the report is aimed at raising public awareness rather than raising constitutionally dubious legislation. But I do believe 

that Congress will eventually be called to add homeless status to 

the Hate Crimes Prevention Act, and for all I know, the lobbying 

process may have already begun. For this reason, I think all of the 

concerns that were raised with regards to federalizing hate crimes 

in general should be considered, not with regards to this particular 

act. 

Now, I know I am running short on time, so I will not go through 

those objections. Instead, let me just briefly mention what I believe 

would be somewhat of a surprise. I have no per se objection to 

12 

homeless status being added to group characteristics in the Hate 

Crime Statistics Act. Indeed, I generally and strongly encourage 

the collection and dissemination of empirical data as a means to inform public judgments on criminal justice policy. In fact, I believe 

the bill at issue today does not go far enough to ensure full and 

accurate information about the commission of and response to 

crimes motivated by legislatively identified animus or bias. What 

is missing from our collective knowledge is whether the Hate 

Crimes Prevention Act, last year’s legislation, is justified by the 

failure of State and local officials to prosecute crimes of violence 

that fall within the definition of a hate crime. 

To remedy this sort of information gap, Senator Hatch has previously proposed a study to look into the question of State default. 

Maybe this study would show a trend of under-enforcement by 

State and local prosecutors and insufficient punishment for crimes 

of violence, evincing a need for some type of Federal action. Or 

maybe it would affirmatively demonstrate that State and local officials are assiduously fulfilling their obligations, that bias-motivated 

offenders are receiving just and effective punishment, and that the 

Hate Crimes Prevention Act is entirely unnecessary. Either way, 

the American people and their elected representatives would be in 

a better position to evaluate this contentious area of criminal justice policy. 

Again, thank you for the opportunity to speak today, and I look 

forward to answering any questions that you might have. 

[The prepared statement of Mr. Luna appear as a submission for 

the record.] 

Senator CARDIN. Professor Luna, thank you very much for your 

testimony. 

We will now turn to Commander Richard Wierzbicki. 

STATEMENT OF RICHARD WIERZBICKI, COMMANDER, HATE 

CRIMES/ANTI-BIAS TASK FORCE, BROWARD COUNTY SHERIFF’S OFFICE, FORT LAUDERDALE, FLORIDA 

Mr. WIERZBICKI. Thank you, Senator. I am honored to testify 

today on behalf of the Broward County Florida Sheriff’s Office. 

Sheriff Al Lamberti sends his regards and has submitted a statement for the hearing record. 

I am a longstanding member of the Nation’s law enforcement 

community with over 32 years of public service and can attest to 

our profession’s interest in advancing strategies that enhance the 

prevention, investigation, and prosecution of crimes committed 

against the homeless population, including crimes motivated by 

bias. Rigorous and widespread collection, reporting, and analysis of 

bias-motivated crime data is one such solution. That is what the 

Hate Crimes Against the Homeless Statistics Act, introduced by 

yourself and Senator Collins, would accomplish. That is why the 

Broward County Sheriff’s Office, the largest accredited Sheriff’s Office in the United States, fully supports this legislation. 

As a law enforcement officer, I have dealt with crimes committed 

against homeless people motivated by bias. For example, James 

Cunningham, a 54-year-old homeless man, was attacked in Pompano Beach, Florida, in October 2009. The attack was recorded on 

video and posted on YouTube by one of the offenders. The video 

13 

showed two attackers shoving, taunting, and dragging Mr. 

Cunningham down a Pompano Beach street by the ankles as two 

other men held his arms and laughed. 

This dramatic incident reflects the intensity of bias that some 

hold against people experiencing homelessness. Many other lowerorder incidents against homeless people occur routinely, but escape 

attention in part because the victims may not report them out of 

a belief that law enforcement officers will not investigate them sufficiently, or equally troubling, because members of the general population have come to accept victimization as an inevitable consequence of homelessness. 

Use of crime statistics generally is a staple of effective law enforcement practice. The availability of data about bias-motivated 

crimes is instrumental in inspiring community action to protect 

various population groups subjected to bias and is critical to law 

enforcement agencies for developing plans of action, deploying resources, and measuring our progress. 

Take our experience in Broward County, Florida. I led the Hate 

Crimes/Anti-Bias Task Force created in 2008 by Sheriff Lamberti 

as a direct response to data in the Florida Attorney General’s annual hate crimes report, which indicated that our county, Broward 

County, led the State in reported hate crimes and has for several 

years. The data told us where the crimes were occurring, who was 

being targeted, and why they were being attacked. Based on the 

data, we were then able to decide how and where to deploy resources to combat hate. For example, the data revealed that several 

houses of worship were vandalized with offensive symbols associated with hate. We responded in part by co-hosting and implementing a ‘‘Keeping your Religious Institution Safe’’ seminar for 

clergy and congregation members alike. 

Regrettably, our Attorney General’s hate crimes report—no different than similar reports in many other States—did not tell us 

anything about bias-motivated crimes against the homeless population because such data is not collected as part of uniform crime 

reporting, even though those of us who have worked the beat know 

full well that such crimes occur. By lacking such data, our task 

force simply could not plan a meaningful response to bias-motivated crimes against our large homeless population. 

The true extent of bias-motivated crimes against the homeless 

population will never be known if we do not achieve multi-State reporting of such crimes through the existing national hate crime 

data collection and reporting system. Passage of the Hate Crimes 

Against the Homeless Statistics Act would remedy these gaps in information and consequent deficiencies in law enforcement practice. 

From an operations standpoint, I foresee absolutely no difficulty 

arising from the inclusion of the homeless population as a covered 

group by the Federal Hate Crimes Statistics Act. Further, the addition of the homeless population to the Hate Crimes Statistics Act 

will in no way impede efforts to collect and report data on bias-motivated crimes committed against currently covered groups. 

In conclusion, it is my strong conviction that it must become 

standard practice for all law enforcement agencies to vigorously collect data on the number and types of incidents of bias-motivated 

crimes against homeless victims. When the homeless population is 

14 

left out of national hate crime data collection and reporting, we fail 

in our responsibility to protect all Americans equally. 

Thank you. 

[The prepared statement of Mr. Wierzbicki appear as a submission for the record.] 

Senator CARDIN. Thank you very much for your testimony. 

At this point I would ask unanimous consent to place in the 

record a statement from Al Lamberti, the Broward County Sheriff’s 

Office, and from Governor O’Malley of Maryland, and a statement 

from the National Law Center of the Homeless and Poverty, all in 

support of the legislation that has been referred to. 

[The statements appear as a submission for the record.] 

Senator CARDIN. Thank you again for your testimony. 

Mr. Muhlhausen. 

STATEMENT OF DAVID B. MUHLHAUSEN, PH.D., RESEARCH 

FELLOW IN EMPIRICAL POLICY ANALYSIS, CENTER FOR 

DATA ANALYSIS, THE HERITAGE FOUNDATION, WASHINGTON, D.C. 

Mr. MUHLHAUSEN. Thank you. My name is David Muhlhausen. 

I am research fellow in the Center for Data Analysis at the Heritage Foundation. I thank Chairman Cardin, Ranking Member Graham, and the rest of the Committee for the opportunity to testify 

today about crimes against the homeless. The views I express in 

my testimony are my own and should not be construed as representing any official position of The Heritage Foundation. 

My spoken testimony will concentrate on two points. 

My first point is that while every case of a violent act committed 

against an innocent homeless person is tragic and should be prosecuted to the fullest extent of the law, the prevalence of these 

crimes does not rise to a level that requires formal data collection 

by the Federal Government. 

According to a recent report by the National Coalition for the 

Homeless, 2009 was the deadliest year in a decade for the murder 

of homeless persons by housed or domiciled individuals. By the coalition’s own count, there were only 43 of these homicides in 2009. 

To properly understand the prevalence of homeless murders, we 

need to present the 43 murders as a percentage of all murders recorded by the Federal Bureau of Investigation. 

In 2009, the FBI counted 15,241 murders in the United States. 

The 43 murders counted by the National Coalition for the Homeless represents 0.28 percent of all murders recorded by the FBI. 

Conversely, all other murders accounted for 99.72 percent of the 

total. Needless to say, the number of murders of the homeless by 

domiciled individuals is a minuscule fraction of total murders. 

A second way of putting the number of homeless murders in perspective is to express it as a rate per 100,000 homeless persons. 

The United States Department of Housing and Urban Development 

estimated that there were over 643,000 homeless individuals in a 

single point in time in 2009. The entire population of the United 

States was over 307 million people. Based on these populations figures, the national murder rate of the homeless by domiciled individuals is 6.7 incidents per 100,000 homeless persons. The murder 

rate for the national population was five incidents per 100,000 resiVerDate Nov 24 2008 09:24 Mar 29, 2011 Jkt 064876 PO 00000 Frm 00018 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64876.TXT SJUD1 PsN: CMORC
15 

dents. While the homeless murder rate is higher than the national 

rate, the difference is neither startling nor a justification for the 

Federal Government to begin formally collecting statistics on these 

crimes. 

Other subpopulations, like black males, face higher murder 

rates. While the National Coalition for the Homeless interpreted its 

data as presenting shocking, alarming, and disturbing findings, it 

produces no such startling numbers to support its goal of persuading the Federal Government to collect data on these crimes. 

My second point is that the Hate Crimes Against the Homeless 

Statistics Act of 2009 is unnecessary. When Congress considers the 

need for collecting data on any social phenomenon, the nature of 

the evidence presented to Congress should be instrumental to the 

decisionmaking process. A wrong assessment of the evidence can 

lead Congress to waste valuable resources. An objective and fair 

analysis of the data presented by the coalition simply does not provide support for the Hate Crimes Against the Homeless Statistics 

Act. Nevertheless, crimes against the homeless, like all other ordinary street crimes, should be prosecuted to the full extent of the 

law by State and local governments. 

While some may argue that the lack of reliable and objective 

data on the number of crimes committed against the homeless by 

domiciled individuals is justification enough for Federal intervention, such logic leads the Federal Government down the unending 

road of collecting data on any perceived social problem, whether or 

not the problem warrants attention by the Federal Government. 

The Hate Crimes Against the Homeless Statistics Act of 2009 is 

unnecessary. 

Thank you. 

[The prepared statement of Mr. Muhlhausen appear as a submission for the record.] 

Senator CARDIN. Thank you very much for your testimony. 

Mr. Muhlhausen, I was listening to your testimony, and I 

thought you were testifying in support of my bill at some point. It 

seems like we need to have good information to make decisions. I 

appreciate you mentioning the statistics from the advocacy community. The issue is whether we have the same numbers as to the 

number of people who are being victimized because they are homeless versus the other statistical information we have about violent 

crime, which is collected in a different manner. It seems to me we 

are comparing apples to oranges, and the purpose of this bill, as 

I pointed out, is to get uniform information. 

And, second, it seemed to me that your testimony at times drifted toward your concern about the hate crimes law itself as to 

whether there should be a separate identification of crimes that are 

committed because of a person’s protected status, and that debate 

has been one that we have had in Congress, and the majority of 

the Congress has acted to say that, yes, every violent act, every 

criminal act should be held accountable under our criminal justice 

system. Every single one. But when a person is victimized solely 

because of their race or solely because of their gender or their gender identity or their disability, that presents an inherent problem 

in our country that needs to be dealt with and needs to be identified and cannot go unchallenged. And that to me was the reason 

16 

why the majority in Congress passed the hate crimes, signed into 

law, and we have amended it over time. 

Now, that is not the debate today. The debate today—and I want 

to get, if I could, into Mr. Wierzbicki—is to whether we have adequate information in order to make good judgments. And I was impressed by your testimony that it would be very little additional 

burden to your agency to identify this information for the FBI data 

collections. 

Mr. WIERZBICKI. Yes, Senator. All it amounts to is checking 

under a different box. We would add the homeless into the category, check a box, and change the software, and it is pretty much 

a done deal. 

Senator CARDIN. Now, I also applaud your efforts with the Hate 

Crimes/Anti-Bias Task Force. You have recognized that you have 

an issue that you need to deal with in Broward County. You have 

already identified the specific case of Mr. Cunningham, but I take 

it that you are seeing crimes, violent crimes, committed against individuals solely because they are homeless. 

Mr. WIERZBICKI. That is correct. 

Senator CARDIN. They are not being targeted for robbery; they 

are not being targeted for an anger assault. They are being targeted because they are perceived by the attacker as a worthy victim because they are homeless. 

Mr. WIERZBICKI. The beatings in Broward County, the attackers, 

it was almost a sport to them, and the attacks were very violent. 

And I know research shows that a lot of the attacks are more violent because the attackers view them as subhuman and they have 

no place to retreat. So that is why Sheriff Lamberti decided we 

need to do the right thing and support the homeless inclusion into 

the Florida hate crimes statute. 

Senator CARDIN. And, of course, it is underscored by the type of 

ads that you see in this magazine, you know, announcing that 

there would be a National Hobo Convention, that there will be 

floats, music, a vat of stew, and, yes, hobos, kill one for fun. Is that 

like you have a right to do that? 

Mr. WIERZBICKI. Yes, it is unfortunate that we have sunk that 

low in our society. But one of the other things I mentioned when 

I was in Tallahassee, somebody came up to me and he said, ‘‘Have 

you heard the new Jacksonville radio show? ’’ I said, ‘‘What are you 

talking about? ’’ He said, ‘‘It is called bum on bum.’’ And the actual 

radio producers go out on the streets of Jacksonville and encourage 

two homeless men to fight each other, and I think the winner gets 

some kind of prize. 

Senator CARDIN. Well, I think in order to counter the strategy, 

there are a lot of things we need to do, but we also need to have 

accurate information. 

Professor Luna, I was impressed by your testimony, and we had 

a hearing before the Judiciary Committee, I think it was just 2 

weeks ago, dealing with rape and the reporting of rape crimes in 

America, and that we did not have consistent information as to the 

number of domestic violence cases that are taking place in this 

country. And one of the reasons that we did not have uniform definitions and we had the discretion of the investigating law enforceVerDate Nov 24 2008 09:24 Mar 29, 2011 Jkt 064876 PO 00000 Frm 00020 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64876.TXT SJUD1 PsN: CMORC
17 

ment officer, and the general view there was that it would be good 

to have that information. 

When the FBI is collecting data under the hate crimes, we get 

uniform reporting. It is not perfect, but it is certainly the best we 

have. So as I understand your testimony, having the information 

would be useful in developing strategies. 

Mr. LUNA. Agreed. I have absolutely nothing against this bill 

itself. And I understand that you are not interested in getting into 

the discussion about what occurred last year, and if and when that 

point comes, I am sure there will be lots of testimony about that, 

whether to add it to the Hate Crimes Act that currently exists. 

I totally agree that it is a good thing to have that kind of information. It is a good thing to have some uniform standards. And my 

wish would be that the advocates, who, again, are tireless and they 

are doing—they are doing God’s work in working for the homeless, 

no doubt. But I wish that they would be using the type of standards in reporting and identifying crimes that are utilized by the 

FBI through its delegated authority. And going through the report, 

as I said before, there are—each of these incidents is—it is disgusting. There is no doubt about that. But there is a question: Are 

these actual hate crimes as defined either under the Hate Crime 

Statistics Act or under the bill, the law that was passed last year. 

And there are some real doubts about that. 

And I also think that it would be important—again, I mentioned 

Senator Hatch’s—he has been a long time asking for this. And I am 

not interested in it because I have a political axe to grind. I have 

no political axe to grind. But I would like to know whether or not 

the local and State officials are, in fact, defaulting on their obligation to prosecute these crimes. And from what I see, in both hate 

crimes reports, aside from the homeless, and also the reports presented by the National Coalition for the Homeless, I see law enforcement putting effort into this and prosecuting individuals and 

investigating it to the extent that they can. If there is a problem, 

the problem is that the homeless, and for understandable reasons, 

have some concern about presenting this information to the police. 

And this bill itself is not going to do anything to encourage the 

homeless to report their crimes if, in fact, they have some fear or 

if they do not know the various channels by which to report this 

information. That I think would be a good step. 

Senator CARDIN. Well, I think I am going to leave it at that. I 

think we are in agreement that getting reliable information is important. I do not know the relative accuracy of the information because we do not have uniform reporting nationwide, and that is 

what I would like to see. So I do not reach a judgment as to the 

accuracy of the information that has been presented. But I do know 

I would feel much more comfortable, before I am called upon to act, 

to have that uniform information that the legislation that Senator 

Collins and I have introduced would do. 

Mr. Muhlhausen, let me see if I understand. Would you object to 

having uniform national information on status crimes—that is, we 

will not characterize them as hate crimes right now, but if we were 

to ask for uniform information as we so under the hate crimes statute for victims of racial violence or religious attacks, and homeless 

18 

I add to that, do you object to getting that information done on a 

national level as compared to just information about crimes? 

Mr. MUHLHAUSEN. Well, in general, I think it is a good thing to 

collect information, but one of my questions is that I doubt that 

this report that was just issued, I guess, last month rises to a level 

to justify Federal legislation; and, second, that—where do we draw 

the line? Anytime any group—— 

Senator CARDIN. Let me just stop you for 1 second. I believe that 

you would find the statistical information on most of the status 

crimes that I have talked about—in other words, violence based 

upon race. If you take it on the murder rate, you would not isolate 

enough to make it a statistically worthy venture because that is 

not the main thrust of the use of the information. It is to deal with 

violence against individuals solely because of race to try to deal 

with the underlying problems in our community of racial tensions 

and violence. 

My question to you is: Is it useful to have that information? Or 

do you oppose knowing the amount of violent acts against individuals based upon race, based upon religion, based upon gender or 

gender identification? 

Mr. MUHLHAUSEN. I do not oppose collecting the basic information. What I am—— 

Senator CARDIN. Why don’t you add homeless to that? 

Mr. MUHLHAUSEN. Well, what I am concerned about is that the 

data presented—it was presented in a way to suggest there was a 

rising tide of violence, and in fact, there is no tide. It is—— 

Senator CARDIN. We do not know that. I mean, I will go so 

far—— 

Mr. MUHLHAUSEN. Based on the evidence. 

Senator CARDIN. Well, we do not—— 

Mr. MUHLHAUSEN. That we have. 

Senator CARDIN. If you base it upon the information that has 

been presented by the advocacy community, then we do have a rising problem, that there has been an increased amount of violence, 

and that it is statistically much higher than other protected classes, if you accept their information. 

I am going to agree with you. I do not know whether that is accurate relative to the other protected classes or not. That is what 

we are trying to find out. 

Mr. MUHLHAUSEN. Well, I think a good thing to find out is, if 

this bill were to move, how about add Senator Hatch’s recommendation, what Professor Luna talked about, and collect prosecution information. What is going on? Are these crimes being prosecuted? Because I think these crimes, when they are committed, 

they should be prosecuted. 

Senator CARDIN. We do not disagree with that, but it reminds me 

of people who complain that we should not try to stop wars because 

we cannot stop all wars or we should not fight for human rights 

because we cannot end all human rights abuses. I mean, you make 

progress where you can make progress. 

Mr. MUHLHAUSEN. Well, I think the fact is that there are other 

segments of society that are probably far more victimized. I mean, 

just read the report, and, you know, it is like—— 

Senator CARDIN. I am for making progress in every area we can. 

19 

Mr. MUHLHAUSEN. Burglars target people with homes. We are 

not concerned about that. I mean, what about crimes against people with homes? 

Senator CARDIN. We are concerned about that. 

Mr. MUHLHAUSEN. We are not collecting statistics on that necessarily as a hate crime. 

Senator CARDIN. But we do have uniform statistics on that. The 

problem—we do have uniform crime statistics that are available 

nationwide. The problem is it is not divided as to the homeless 

today. So I take issue with you. I think we do have good information on burglaries in this country. We do not on attacks against the 

homeless. That is the purpose of the bill, is to get that information. 

That is why I was trying to figure out your objections, and you say 

you do not object to having good information, you say you do not 

object to having it isolated into protected classes. So I am going to 

leave it at that because I just interpret from your comments that 

you want to be opposed to this bill, which is your right to do it, 

but I do not see any rational distinction if you support collecting 

information on crimes, if you support collecting information against 

people because of their race, et cetera. Then we can debate whether 

homeless is important enough or not, and that is an issue for Congress to make a judgment on. Thank you. 

Professor Levin, let me just try to get you engaged in this discussion, because, you know, one of our principal objectives is to try to 

understand the homeless and try to reduce the number of people 

that are homeless. What is concerning me is that we see a lot of 

military people returning who end up homeless. We see domestic 

violence leading to the homeless population. We see people with addictions becoming homeless. 

Is there a trend here that we should be concerned about as we 

try to protect the people from becoming homeless, but those who 

become homeless, to get the services they need to protect them not 

only against violence but to protect their basic needs? 

Mr. LEVIN. Absolutely, and with unemployment notionally at 9.6 

percent and the difficult landscape housing situation, which has 

been well documented by this body, the Senate, I think it is important to recognize that many people who thought that they would 

never be homeless including veterans and families have, in fact, become homeless. 

What I am even more astounded by, with all due respect to my 

fellow panel members, is how there are those who could be against 

merely collecting data. 

The other thing that I would like to address is that I think it 

would be nice to have some common sense prevail here. As Professor James Weinstein from Arizona said, Kristallnacht was more 

than merely the sum of the assaults, murder and arsons that took 

place on the evenings of November 9 and 10, 1938. These are offenses against a pluralistic democracy. The criminal law consistently looks at context: the target, the timing, the location, and the 

motive of offenses. Indeed, motive—as the Supreme Court held, by 

the way, in a case where I wrote two briefs, Wisconsin v. Mitchell— 

is something that the Government can indeed punish by statute, 

not just with regard to sentencing. And we have as a society decided that discrimination, as the United States Supreme Court said 

20 

in Roberts v. U.S. Jaycees, is a scourge that the Government has 

an obligation to eradicate. 

So when we talk about the fact that there are homicides out 

there—for instance, there are a lot of homicides committed against 

African-American males. However, above and beyond that risk, 

there is an additional risk from people who are attacking individuals for discriminatory urposes and that not only places victims in 

great peril, it undermines institutions and processes of our pluralistic democracy. I pursue this position for the same reasons that I 

stood with my conservative friends of goodwill in support of the 

Church Arson Prevention Act, because burning a church in a pluralistic society such as ours is different than burning a barn. We 

also have to note that many of the homicides in our society involve 

what we would call routine personal relationships, bar fights and 

intimate violence—these are horrible crimes. But the notion of random attacks by people who select others because of a status characteristic is something that is also distinctly egregious. And, indeed, the trial judge in Barclay v. Florida, which went up to the 

United States Supreme Court, I think said it quite well. He said, 

‘‘I, like so many American Combat Infantry Soldiers, walked the 

battlefields of Europe and saw the thousands of dead American and 

German soldiers, and I witnessed the concentration camps where 

innocent civilians and children were murdered in a war of racial 

and religious extermination. to attempt to initiate such a war in 

this country is to horrible to contemplate. . . .’’ 

So I think when we are looking at data, we have to understand, 

for instance, that in our society we look at context. Robbing a bank 

is treated under Federal legislation differently and enumerated differently than robbing a liquor store because of the additional threat 

to our eonomic system. 

Sexual assault of all kinds is egregious, but sexual assault of a 

minor is something that we extend more punishment to. Similarly, 

being disorderly outside the Senate building is treated differently 

than being disorderly on an airplane. 

So it is important to recognize that the criminal law has consistently throughout our nation’s history taken into account motive, 

context, offender status, victim status and—recidivism, for instance. We treat people who commit crimes more than once differently than we treat first offenders. Here we already have a 

group of people who are being horrendously victimized and face an 

additional risk on top of that. 

I have appended to my testimony a whole list of studies. Are 

there limitations geographically? Are there limitations in a variety 

of ways? Yes. But in the same way that a smoke alarm sends out 

a credible message that something is wrong, I believe that we have 

enough data to indicate that there is an additional problem. And, 

indeed, the kind of offenders that we are seeing commit these bias 

attacks are different and may very well need a different type of deterrence. For instance, reckless driving is a threat that is out there, 

but drunk driving is as well and treated differently. And as we can 

see here—and I would like to say that this does leave out 1 year, 

so let us even bump up an estimate for the FBI documented homicides to maybe 110. We are seeing a scourge, and within that offenders who resemble very much the types of offenders who commit 

21 

the ‘‘mainstream’’ traditional hate crimes—thrill attackers, turf 

protectors, and hardened bigots. 

What I believe we are seeing is a shift from traditional targets 

like gays, Jews or African-Americans to others, in part because the 

homeless are still regarded as socially acceptable targets for aggression. And one of the things that the research has shown, as 

Professor Robin Williams—emeritus of Cornell, maintains, is that 

these offenders act on a printed circuit of stereotypes. Some like 

neo-Nazi skinheads seek out and attack the homeless numerous 

times, including most recently in Cincinnati, Ohio. These offenders 

act on cleansing their communities, as part of an Aryan notion of 

purification. We also see people including many non-skinheads who 

maybe 20 years ago would have defended their communities 

against African-Americans moving in. 

Most commonly, we see a slew of young offenders—indeed, the 

majority who are under age 20 who often attack in part for excitement and peer validation. The notion that we cannot benefit, particularly our local police departments, our human relations institutions, and our schools by more data to track locations, offenders 

and recidivism, astounds me. When Boston put forth enforcement 

of hate crime laws, they, at least for decades, did not find any recidivism. So I think we should study this, whether or not we eventually decide to enhance penalties. But I do think we have to say 

that by offender and victim characteristics and, indeed, the way 

these crimes affect whole communities, these random strangerbased crimes, particularly with crimes like this, for example, and 

there is much not capture by existing raw numbers: is overkill . It 

is not like most crimes where a meaningful act of compliance on 

the part of the victim can limit their risk. Here we are seeing overkill with imprecise weapons of opportunity by lynch mobs of youth, 

and we have to collect more data. Indeed, it is the very fact that 

the data has some limitations that we need consistent, uniform law 

enforcement data. 

Last point. Even the New York City Police Department, which I 

was a proud member of and am a third-generation former officer, 

reclassifies about 10 percent of its initial hate crimes every year, 

and I even have the documentation here for you. 

Senator CARDIN. Well, thank you, Professor. I appreciate that. 

Let me just again, Ms. Manning-Moon, your brother, Norris Jay 

Gaynor, it seems like he made peace with his lifestyle, that he was 

proud that he was taking care of himself on the streets. I am impressed by the fact that he did not want to take Government benefits because he thought he could take care of himself. So he did not 

really ask much from this country. 

Ms. MANNING-MOON. No, he did not. If he did realize on some 

days that he needed help, his innate notion that he should not rely 

on the Government or anyone—and he has actually said that to me 

many times—took over and won out. 

In fact, there was a gentleman who wrote a piece after my brother’s death, an op-ed piece in one of the Florida newspapers saying 

that he had befriended my brother over the past couple of years 

and that he would sit on the park bench and talk with him about— 

and my brother would give opinions about the museum clock that 

stopped beating. And at one point this gentleman tried to accomVerDate Nov 24 2008 09:24 Mar 29, 2011 Jkt 064876 PO 00000 Frm 00025 Fmt 6633 Sfmt 6633 S:\GPO\HEARINGS\64876.TXT SJUD1 PsN: CMORC
22 

pany my brother to a facility that could get him some help, and he 

ended up bolting from that for what might be a variety of reasons, 

but, you know, knowing him the way I do, it would be largely because he wanted to stay independent. He did not want to be a burden on anyone. 

It is ironic that his killers, who fit the profile that Professor 

Levin just described, actually had many of, if not more of, the problems that my brother had in his younger years. But they somehow 

never carried the accompanying notion that they were to man up 

and try to take care of themselves. That was a memo that was 

never received by them, I suppose. 

Senator CARDIN. Well, your brother had a right, though, to expect that the country that he lived in, which is the envy of the 

world for promoting liberty and justice and opportunity for all of 

its citizens, a model democracy, that that country would do everything in its power to prevent the type of hate activity that has burdened so many countries over the history of the world, which the 

United States—we have had our share. Don’t get me wrong. But 

we have always responded to it. And we embrace diversity in 

America. We do. That is our strength. This is a Nation of diversity, 

and we have a responsibility to do everything we can to keep people safe. 

Ms. MANNING-MOON. Yes, Senator. Thank you for that. I would 

also like to augment Professor Levin’s comment specifically regarding the recidivism or lack of recidivism issue with those who fall 

into this category of attacker. The local newspaper described one 

of the convicted killers of my brother and attacker of two others 

that night as someone whose friends said routinely went out seeking homeless people to beat and attack. So this was not uncommon 

at all, and if we think about what the value would be of having 

legislation that would actually help the law enforcement department in Broward County and elsewhere track, understand, have on 

their radar this type of behavior, imagine what the possibilities 

would be if that had happened earlier, that tracking had happened 

earlier. And Brian Hooks—is his name—would have been identified 

earlier as someone who is prone to this type of behavior. 

Senator CARDIN. Well, I have opportunities to travel throughout 

Maryland frequently and talk to the people of our State, and I can 

tell you that they want us at the national level to do everything 

we can to reduce the number of homeless, particularly those who 

are homeless because of a circumstance such as domestic violence 

or the fact that they have come back from serving our Nation in 

war and cannot make the transition back; they need help in order 

to do that. So they want us to do that, but they also understand 

that this Nation needs—its first priority is to protect its citizens 

and that when someone is brutally attacked or put in harm’s way 

solely because they have no roof over their heads at night, that is 

not America. But they want to know the facts in order—they want 

us to act upon good information. 

Ms. MANNING-MOON. Well, I appreciate that, Senator, and I 

would just say on a passionate note on behalf of both my father 

and myself, I wholeheartedly support the gathering of data to make 

a determination. And I must say that anything that I hear that 

promotes the concept of not gathering information so that we can 

23 

keep a disjointed conclusion is a rather unintelligent argument. 

You have to gather the data first in order to come to your conclusions. This is what I have been taught all my life. So I wholeheartedly support this legislation. 

Senator CARDIN. Thank you. Well, I want to thank all five of our 

witnesses. I think this has been extremely helpful. I particularly, 

again, appreciate Ms. Manning-Moon putting a face on the issue. 

When you have national statistics or numbers, they get lost at 

times and you realize that they are really people and families, and 

that is very important. 

Commander Wierzbicki, I appreciate your testimony. To hear 

from the law enforcement directly—you are on the front lines. You 

are out there battling every day, and we very much appreciate the 

efforts that you are making, and please express our appreciation to 

your fellow people who are out there, police officers or the sheriff’s 

department doing the work. 

I thank the other three witnesses for their expertise on this subject and trying to help us figure out what we should do next. The 

purpose of this hearing was to gather information from you all as 

to what Congress can do to carry out our principal responsibility 

of protecting the people of this Nation. I found the hearing very 

helpful, and we will decide next how to proceed, and we thank you 

for your testimony. 

The Committee record will stay open for 1 week in the event that 

there are additional questions that are asked by any of our members. We would ask, if that is the case, that you try to reply as 

quickly as possible. 

With that, the Subcommittee will stand adjourned. Thank you all 

very much. 

[Whereupon, at 11:16 a.m., the Subcommittee was adjourned.] 

[Additional material is being retained in the Committee files, see 

Contents.] 

[Questions and answers and submissions for the record follow.] 

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