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LOCAL LAW ENFORCEMENT HATE CRIMES

PREVENTION ACT OF 2007

HEARING

BEFORE THE

SUBCOMMITTEE ON CRIME, TERRORISM, 

AND HOMELAND SECURITY

OF THE

COMMITTEE ON THE JUDICIARY 

HOUSE OF REPRESENTATIVES

ONE HUNDRED TENTH CONGRESS

FIRST SESSION

ON

H.R. 1592

APRIL 17, 2007

Serial No. 110–71

Printed for the use of the Committee on the Judiciary

(

Available via the World Wide Web: http://judiciary.house.gov 

(II)

COMMITTEE ON THE JUDICIARY 

JOHN CONYERS, JR., Michigan, Chairman 

HOWARD L. BERMAN, California 

RICK BOUCHER, Virginia 

JERROLD NADLER, New York 

ROBERT C. (BOBBY) SCOTT, Virginia 

MELVIN L. WATT, North Carolina 

ZOE LOFGREN, California 

SHEILA JACKSON LEE, Texas 

MAXINE WATERS, California 

MARTIN T. MEEHAN, Massachusetts 

WILLIAM D. DELAHUNT, Massachusetts 

ROBERT WEXLER, Florida 

LINDA T. SA ́ NCHEZ, California 

STEVE COHEN, Tennessee 

HANK JOHNSON, Georgia 

LUIS V. GUTIERREZ, Illinois 

BRAD SHERMAN, California 

TAMMY BALDWIN, Wisconsin 

ANTHONY D. WEINER, New York 

ADAM B. SCHIFF, California 

ARTUR DAVIS, Alabama 

DEBBIE WASSERMAN SCHULTZ, Florida 

KEITH ELLISON, Minnesota 

LAMAR SMITH, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

ELTON GALLEGLY, California 

BOB GOODLATTE, Virginia 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California 

CHRIS CANNON, Utah 

RIC KELLER, Florida 

DARRELL ISSA, California 

MIKE PENCE, Indiana 

J. RANDY FORBES, Virginia 

STEVE KING, Iowa 

TOM FEENEY, Florida 

TRENT FRANKS, Arizona 

LOUIE GOHMERT, Texas 

JIM JORDAN, Ohio

PERRY APELBAUM, Staff Director and Chief Counsel 

JOSEPH GIBSON, Minority Chief Counsel 

SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

ROBERT C. (BOBBY) SCOTT, Virginia, Chairman

MAXINE WATERS, California 

WILLIAM D. DELAHUNT, Massachusetts 

JERROLD NADLER, New York 

HANK JOHNSON, Georgia 

ANTHONY D. WEINER, New York 

SHEILA JACKSON LEE, Texas 

MARTIN T. MEEHAN, Massachusetts 

ARTUR DAVIS, Alabama 

TAMMY BALDWIN, Wisconsin 

J. RANDY FORBES, Virginia 

LOUIE GOHMERT, Texas 

F. JAMES SENSENBRENNER, JR., 

Wisconsin 

HOWARD COBLE, North Carolina 

STEVE CHABOT, Ohio 

DANIEL E. LUNGREN, California

BOBBY VASSAR, Chief Counsel 

MICHAEL VOLKOV, Minority Counsel 

(III)

C O N T E N T S 

APRIL 17, 2007

Page 

THE BILL 

H.R. 1592, the ‘‘Local Law Enforcement Hate Crimes Prevention Act of 2007’’ 142

OPENING STATEMENTS 

The Honorable Jerrold Nadler, a Representative in Congress from the State 

of New York, and Member, Subcommittee on Crime, Terrorism, and Homeland Security ........................................................................................................ 1

The Honorable Louie Gohmert, a Representative in Congress from the State 

of Texas, and Member, Subcommittee on Crime, Terrorism, and Homeland 

Security ................................................................................................................. 2

The Honorable John Conyers, Jr., a Representative in Congress from the 

State of Michigan, and Chairman, Committee on the Judiciary ..................... 4

WITNESSES 

The Honorable Mark L. Shurtleff, Attorney General of the State of Utah 

Oral Testimony ..................................................................................................... 17

Prepared Statement ............................................................................................. 26

Mr. Timothy Lynch, Director, Project on Criminal Justice, CATO Institute 

Oral Testimony ..................................................................................................... 32

Prepared Statement ............................................................................................. 34

Mr. Frederick M. Lawrence, Dean, The George Washington University Law 

School 

Oral Testimony ..................................................................................................... 39

Prepared Statement ............................................................................................. 41

Mr. David Ritcheson, Harris County, TX 

Oral Testimony ..................................................................................................... 67

Prepared Statement ............................................................................................. 39

Mr. Brad W. Dacus, President, Pacific Justice Institute 

Oral Testimony ..................................................................................................... 70

Prepared Statement ............................................................................................. 73

MR. JACK McDEVITT, ASSOCIATE DEAN, NORTHEASTERN UNIVERSITY 

Oral Testimony ..................................................................................................... 83

Prepared Statement ............................................................................................. 85

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING 

Prepared Statement of the Honorable Sheila Jackson Lee, a Representative 

in Congress from the State of Texas, and Member, Subcommittee on Crime, 

Terrorism, and Homeland Security .................................................................... 8

Prepared Statement of the Honorable J. Randy Forbes, a Representative 

in Congress from the State of Virginia, and Ranking Member, Subcommittee on Crime, Terrorism, and Homeland Security ................................ 131

Page

IV

APPENDIX 

Material Submitted for the Hearing Record .......................................................... 141

OFFICIAL HEARING RECORD 

MATERIAL SUBMITTED FOR THE HEARING RECORD BUT NOT REPRINTED

Publication entitled ‘‘Hyperlink to Hinduphobia: Online Hatred, Extremism and Bigotry Against Hindus,’’ Hindu American Foundation. This submission is available 

at the Subcommittee and can also be accessed at:

http://www.hinduamericanfoundation.org/pdf/hatelreportl2007.pdf

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LOCAL LAW ENFORCEMENT HATE CRIMES 

PREVENTION ACT OF 2007

TUESDAY, APRIL 17, 2007

HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIME, TERRORISM, AND HOMELAND SECURITY

COMMITTEE ON THE JUDICIARY, Washington, DC.

The Subcommittee met, pursuant to notice, at 2:08 p.m., in Room 

2141, Rayburn House Office Building, the Honorable Jerrold Nadler presiding. 

Present: Representatives Nadler, Conyers, Waters, Johnson, 

Jackson Lee, Baldwin, Gohmert, Coble, Chabot, and Lungren. 

Mr. NADLER. Good afternoon. I am Congressman Jerrold Nadler. 

I thank you all for attending today’s hearing. 

Unfortunately, the Chairman of the Subcommittee, Bobby Scott, 

is in Virginia at a memorial service for the victims of yesterday’s 

tragedy at Virginia Tech. My thoughts, of course, are with the victims’ families and loved ones. 

At this point, I ask that we take a moment of silence in the 

memory of these victims. 

I know that addressing the issue of hate crimes is a big priority 

for Chairman Scott, as it is for me, and in that spirit, we will begin 

this important hearing. 

Today’s hearing deals with one of the most destructive crimes in 

our society, crimes committed against victims who have been singled out solely because someone does not like who they are. Whether it is because of the actual or perceived race, color, religion, national origin, sexual orientation, gender, gender identity or disability of the victim, these violent acts often can cause death or 

bodily injury and are absolutely reprehensible. 

They target not just an individual but an entire group. These 

crimes do and are often intended to spread terror among all members of the group, and they are intended not merely to do so, but 

often to deter members of the group from exercising their constitutional rights, sometimes from simply walking down the wrong 

street or, indeed, any street. 

As with most criminal activity, bias crimes are properly investigated and prosecuted at both the Federal and State or local levels, depending on the facts of the case and the needs of the investigation. 

The FBI has the best national data on reported hate crimes, although the reporting program is voluntary. Since 1991, the FBI has 

documented over 113,000 hate crimes. For the year 2005, the most 

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current data available, the FBI compiled reports from law enforcement agencies identify 7,163 bias-motivated criminal incidents that 

have been reported to them. Law enforcement agencies identified 

8,795 victims arising from 8,373 separate criminal offenses. 

As in the past, racially motivated bias accounted for more than 

half, 54.7 percent, of all incidents. Religious bias accounted for 

1,227 incidents, 17 percent, and sexual orientation bias for 1,017 

incidents, 14 percent, followed by ethnicity/national origin bias 

with 944 incidents, 14 percent. 

While these numbers are disturbing, it is important to note that 

for a variety of reasons, hate crimes are seriously under-reported. 

These reported numbers are a serious understatement of the problem. 

The proposed legislation that we are going to be considering 

would provide real penalties and address the problem as it actually 

exists. It would deal not just with crimes designed to deprive someone of a narrow list of federally protected rights, but with all hate 

crimes committed where there is Federal jurisdiction. It also provides assistance for law enforcement back home to help them cope 

with this problem. 

Let us be clear: This is not an issue of free speech. What is covered here are criminal acts in which the victim is actually harmed 

and is selected because of his or her status. The law routinely looks 

to the motivation of a crime and treats the more heinous of them 

differently. Manslaughter is different from premeditated murder, 

which is different from a contract killing, though the result is the 

same in all cases. 

We all know how to make these distinctions and the law does it 

all the time. The only question for Members is whether they believe that singling out a person for a crime of violence because of 

his or her race or religion or because of any other trait mentioned 

in this bill is sufficiently heinous to require strong action by law 

enforcement. Do we want to give law enforcement the tools to deal 

with this very real problem? I, for one, hope the answer is yes. 

For many years, Congress debated what were known as the Federal lynch laws. These were designed to deal with the widespread 

practice of lynching primarily African-Americans. There was 

staunch resistance of these laws here in Congress, and their enactment was delayed for decades. It was not a proud moment or, I 

must say, a series of moments lasting for decades in our Nation’s 

history. We now have the opportunity to do the right thing. I hope 

we can agree to do so. 

I thank you. 

I now yield to the distinguished Ranking Member, Mr. Gohmert, 

for opening comments. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

We all do extend our prayers and sympathy to the families of 

those who have been hurt or killed at Virginia Tech and, in fact, 

to the entire Virginia Tech family itself. 

Some might think why should we be taking this matter up on a 

day after such a tragedy when today the Crime Subcommittee here 

will have this hearing on the new hate crime bill. We know that 

people who act out of hate can and do cause terrible devastation 

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and hurt. There is no question about that. Those who cause such 

harm deserve and should be punished. 

A couple of the most often cited cases as a basis for creating new 

hate crimes laws usually include the case, tragically, where the African-American in Texas was dragged to death and another horrible case in Texas where a young man was killed for being a homosexual. In both of those cases, the main perpetrators got the 

death penalty they deserved. 

These and other cases are often cited as reasons for hate crime 

laws. These are cases in which hate crime laws actually would 

have made no difference at all. 

In the dragging death case, I would personally support punishment where the victim’s family in that case could choose the rope 

or the chain used to drag and then the terrain they want to drag 

the defendant over to bring about the death penalty. But that is 

not what this does. In fact, the death penalty is not even an issue 

here. So it would have had absolutely no effect on some of the cases 

that are heralded as poster examples. 

The new hate crime bill creates a vague, ambiguous Federal offense that sends a message that random, senseless acts of violence, 

possibly like yesterday at Virginia Tech, are far more preferable in 

society than the same violent actions with a motive. 

Never mind that sociopaths and antisocial personalities who commit random, senseless acts of violence are normally more than likely difficult to be rehabilited. They will not get punished under this 

new law. Gang members who commit some of the most senseless 

and tragic acts of violence, sometimes simply as an initiation ritual, will be punished not under this bill. 

This hate crimes bill says to the world that sexual orientation—

and not just gender, but gender identity, whatever that vague definition means—are in the same category as those persons who have 

suffered for the color of their skin or their religion. It says to the 

world that in the priorities of the majority of the United States 

Congress, a transvestite with gender identity issues will now be 

more important to protect than a heterosexual, than college or 

school students, or even senior citizens and widows with no gender 

identity issues. 

Whatever happened to the idea that we were all created equal 

and that we were all matter equally in God’s eyes? We all deserve 

equal protection. 

Think about the plain meaning of the word ‘‘sexual orientation.’’ 

Regardless of the definitions society puts on those words today, the 

courts will one day say sexual orientation means exactly what they 

say, that sexual orientation one of these days will be taken to mean 

those very words that includes you are sexually oriented toward 

children, sexually oriented toward corpses, sexually oriented toward animals. Someday, these words can be easily cited by an appellate court as having the very plain meaning, not just the meaning that socially and culturally is accepted right now. 

One other aspect that is not usually discussed will come in the 

new law would be applied along with Article 18 U.S. Code Section 

2(a) of the Federal criminal code that says, ‘‘Whoever aids, abets, 

counsels, commands, induces or procures a crime commission is 

punishable just as if he is the principal.’’

4

You should understand what that means. If a Christian, Jewish 

or Muslim religious leader teaches or preaches that homosexuality 

is wrong or is a sin or someone in the leader’s flock commits a 

crime against a person who practices such act, that religious leader 

may have counseled or induced under the argument and someday 

someone will say so and ministers will be arrested for their preaching. They will be said to have incited such conduct through their 

teaching from the Bible, the Torah or Koran. 

As a matter of fact, some people already blame religious ministers for acts of violence, even though none of them defend anyone 

who supports those acts of violence. They are wrong, and they are 

already punishable under existing laws. 

As a judge, I have harshly sentenced people who have committed 

crimes of hate and also those who have committed crimes as random, cold-blooded, heartless thugs, and I can tell you the victims 

and their loved ones in each case are all traumatized and distraught and deserving of sympathy and compassion. 

Proponents of this legislation say hate crimes are more deserving 

of special punishment because they send, ‘‘fear or in discomfiture’’ 

across an entire community, but if you look at the fear and discomfiture that is created by crimes like we saw yesterday, you understand everyone deserves equal protection. It was not apparently a 

hate crime unless it is true that he killed people because they were 

rich. It still sent fear and discomfiture to every college campus. 

This hate crime legislation, though, tells the country that victims 

like those young people yesterday, if they are killed randomly, they 

are not nearly as important to the country as transvestites with 

gender issues. 

So the message of the hate crime legislation today is apparently 

this: If you are going to shoot, brutalize or hurt someone, the majority in Congress begs you not to hate us while you are shooting 

or brutalizing us. Please make it a random, senseless act of violence,’’ and that does not make sense. 

Thank you. 

Mr. NADLER. Thank you. 

I will now recognize for 5 minutes the distinguished Chairman 

of the full Committee, Mr. Conyers. 

Mr. CONYERS. Well, thank you for giving me enough time to get 

my breath after that presentation, Mr. Chairman. 

As the author of this subject matter, hate crimes, for the last 

decade, I have never started a hearing with that much opposition 

to this legislation. But then that is what we are here for, to see 

if we can talk and reason our way across this understanding that 

we are not giving anybody superior protection; we are bringing in 

a group that have been excluded for a long time. 

You yourself referred to lynchings, which were tragically one 

time commonplace in this country. Nearly 4,000 African-Americans 

were killed, lynched, tortured between 1880 and 1930, and during 

the same period, thereafter, religious groups of Jewish faith, Mormons also, and others were subject to attack. Arab-Americans are 

now coming into that category as well. 

As we all understand, hate violence against minority groups of 

all kinds in this Nation has a long and ignominious history that 

continues even today. We have seen and we heard the statistics 

5

that Chairman Nadler has referenced, and so to protect against 

this hate violence, to protect the Nation against hate violence, I 

have introduced the Hate Crimes Prevention Act for the last decade with ever-increasing support. 

The measure before us today has more than 130 cosponsors and 

will provide assistance to State and local enforcement agencies to 

amend Federal law to facilitate the investigation and prosecution 

of violent, bias-motivated crimes. It does not take the original jurisdiction away from the States. This complements some very important support that frequently is needed in some areas for these 

crimes to be prosecuted. 

I am proud that over 230 educational, religious organizations, 

civic groups, civil rights organizations, virtually every major law 

enforcement organization in the country has endorsed the proposal 

that is before us. It is a proposal that is very little different from 

the one I introduced in the last Congress that passed the House of 

Representatives. 

So, despite the deep impact of hate violence on communities, current law limits Federal jurisdiction over hate crimes to incidents 

only if the victim is engaged in federally protected activities, and 

that we propose to modify. 

And so, like the Church Arson Prevention Act of 1996 which 

helped Federal prosecutors combat church arson by addressing unduly rigid jurisdictional requirements under Federal law, State and 

local authorities currently prosecute the overwhelming majority of 

hate crimes and will continue to do so under this legislation. The 

Federal Government will continue to defer to State and local authorities in the vast majority of cases. The Attorney General or 

high-ranking Justice Department official must approve any prosecutions taken in this sense. 

So we come together to reaffirm in even greater numbers and 

with greater understanding the need for hate crime legislation, and 

I have every confidence that it will pass in the House of Representatives, and we are hoping to get it through this time in the other 

body. 

Thank you for this opportunity, Mr. Chairman. 

Mr. NADLER. Thank you. 

In the interest of proceeding to our witnesses and mindful of our 

busy schedules, I would guess that other Members submit their 

statements for the record. Without objection, all Members will have 

5 legislative days to submit opening statements for inclusion in the 

record. 

Without objection, the Chair will be authorized to declare a recess of the hearing if any reason arises. 

As we ask questions of our witnesses, the Chair will recognize 

Members in the order of their seniority on the Subcommittee, alternating between majority and minority Members, provided that the 

Member is present when his or her term arises. Members who are 

not present when their turn begins will be recognized after the 

other Members have had the opportunity to ask their questions. 

The Chair reserves the right to accommodate a Member who is unavoidably late or who is only able to be with us for a short time. 

I would now like to welcome our distinguished panel of witnesses. 

6

Our first witness, the Honorable Mark Shurtleff, is currently in 

his second term as the attorney general for the State of Utah. In 

addition to his current office, Mr. Shurtleff serves as chairman for 

the internal relations and civil rights committee of the National Association of Attorneys General. He has previously served in the 

United States Navy, Judge Advocate General’s Corps, as an officer 

and attorney. Mr. Shurtleff received his bachelor’s degree from 

Brigham Young University and his law degree from the University 

of Utah School of Law. 

Our next witness, Mr. Timothy Lynch, is the associate director 

of the project on criminal justice for the Cato Institute. Prior to his 

current position, Mr. Lynch served on the National Committee to 

Prevent Wrongful Executions. He has also filed several amicus 

briefs in the United States Supreme Court in cases involving constitutional rights. Mr. Lynch holds a bachelor’s and law degree 

from Marquette University. 

Next is that Dean Frederick Lawrence, dean and professor of law 

at the George Washington University Law School. Dean Lawrence 

began his legal career as a clerk to Judge Amalya L. Kearse in the 

U.S. Court of Appeals for the Second Circuit. He was later named 

an assistant U.S. attorney to the Southern District of New York 

where he became chief of the civil rights unit. Dean Lawrence has 

a bachelor’s degree from Williams College and a law degree from 

Yale University. 

Our next witness is Mr. David Ritcheson who survived a horrendous act of hate violence nearly 1 year ago on April 22, 2006, in 

Harris County, TX. Two individuals attacked him because he is a 

Mexican-American. He has agreed to speak about this terrible experience and to explain why legislation like the Local Law Enforcement Hate Crimes Prevention Act of 2007 is so very important. 

Our next witness, Mr. Brad Dacus—I hope I am pronouncing 

that right—served as legislative assistant to U.S. Senator Phil 

Gramm and went on to receive his law degree from the University 

of Texas Law School. For the next 5 years, Mr. Dacus coordinated 

religious freedom and parental rights cases throughout the western 

States. In 1977, Mr. Dacus was the founder and president of the 

Pacific Justice Institute whose mission is to defend religious liberty 

and parental rights. 

Our final witness is Dean Jack McDevitt, associate dean for research and graduate students and the director of the Institute on 

race and justice in the College of Criminal Justice at Northeastern 

University. In addition to his current post, Dean McDevitt has testified as an extra witness before the U.S. Senate Judiciary Committee and the U.S. Civil Rights Commission. He has also served 

as a consultant to the FBI and the Bureau of Justice Statistics. 

On behalf of the Subcommittee, I want to extend a warm welcome to all of you. 

And I want to recognize, for the purpose of extending a welcome 

to a constituent, the distinguished gentlelady from Texas, Ms. Sheila Jackson Lee. 

Ms. JACKSON LEE. Let me thank the Chairman of the Committee 

and let me thank you very quickly, recognizing the kindness that 

you have extended. 

7

Let me also acknowledge the Chairman of the full Committee 

and the Chairman of the Subcommittee for this very important 

hearing. 

My statement and my welcome is to welcome David for his courage. As a freshman at Klein Collins High School, he had to experience a horrific experience that no child—and he is a young man—

should ever have to have as part of his memory. 

David, we thank you and your family, Mr. and Mrs. Galvan, and 

your wonderful counselor for allowing me to sit with you and to 

hear your story so many, many, many months ago. 

Might I say that I enthusiastically support the underlying bill, 

and I am delighted to have the opportunity to raise your bill, David 

Ray’s Law, that speaks to the issue of young people and the 

horrificness of young people being engaged in hate crimes and 

being solicited by adults, and I hope that the David Ray’s Law can 

be a part of the underlying bill to make this a complete response 

to the tragedy and the disaster and the devastation of hate crimes. 

Welcome, David. We are all so very proud of you. 

And I yield back. 

[The prepared statement of Ms. Jackson Lee follows:]

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PREPARED STATEMENT OF THE HONORABLE SHEILA JACKSON LEE, A REPRESENTATIVE

IN CONGRESS FROM THE STATE OF TEXAS, AND MEMBER, SUBCOMMITTEE ON CRIME, 

TERRORISM, AND HOMELAND SECURITY


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Mr. NADLER. I thank the gentlelady. 

Without objection, the written statements from the witnesses will 

be made part of the record in their entirety. 

I would ask each witness to summarize your testimony in 5 minutes or less. To help you stay within that time, there is a timing 

light at your table, which you will see. When 1 minute remains, the 

light will switch from green to yellow, and then to red when the 

5 minutes are up. 

I will recognize—I suppose, left to right—Mr. Shurtleff first. 

Push the button. 

TESTIMONY OF THE HONORABLE MARK L. SHURTLEFF, 

ATTORNEY GENERAL OF THE STATE OF UTAH 

Mr. SHURTLEFF. My name is Mark Shurtleff, Utah attorney general. Mr. Chairman, Members of the Committee, I appreciate the 

opportunity to be here today and speak in support of H.R. 1592. 

For the second year in a row now, the attorney general of Illinois, Lisa Madigan, and I have co-authored a letter signed by both 

sides of the aisle, if you will, of attorneys general. We have submitted a letter dated April 16, signed by 26 attorneys general, and, 

in fact, we just had another letter passed out of the same date, 

signed by your former colleague and now my colleague, Attorney 

General Bill McCollum of Florida, in support of hate crimes legislation. 

[The information referred to follows:]

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Mr. SHURTLEFF. You know, as chief law enforcement officers of 

our States and jurisdictions, we work very closely on the front lines 

to protect our citizens, both their civil rights as well as protect 

them from crime. And as we all reflect on the horrific event of yesterday—and, clearly, at this point, we do not know the motives involved in that circumstance—we are seeing that obviously first responders are State and local officials are now working with the 

Federal officials in figuring out what went on and how we might 

be able to address these and protect our citizens more fully. 

So I am particularly interested today in coming before you and 

asking for your support in giving additional authority to Federal 

authorities. Now most often, you will see attorneys general come in 

and say, ‘‘Do not federalize every crime. We are on the front lines. 

We will do it. We do not need the Federal Government stepping in 

every chance they can and federalizing every thing.’’ In this case, 

we believe it is very important. We need your help. 

A number of States have passed similar hate crimes legislation 

over the years and, in fact, the 6 years I have been in office, we 

have worked every year diligently to try to pass an enforceable 

hate crime statute in the State of Utah. I am proud to say that last 

year, again, working across the aisle, we were able to do that. It 

was not what I had hoped for or the best law, but it is a good start. 

The bottom line is we need additional Federal legislation in order 

to better protect our citizens and to be able to cooperatively work 

with Federal Government to determine which appropriate punishment is the most effective. 

It is important in particular to amend Federal law, we believe, 

to include those additional categories and to make sure that those 

who commit these types of heinous crimes with premeditation and 

with a bias or prejudice, that we can prove beyond a reasonable 

doubt that they not just be engaged in a federally protected activity, but that we would be able to enhance the punishments if, in 

fact, we can show that bias or prejudice. 

In the 6 years, I have testified every year both before statehouse 

and senate committees. We have addressed every one of these 

issues that you are now facing. They are important issues, and 

there is a great deal of concern over these types of things. In my 

written comments, I include an amended version of what I call the 

hate crimes primer because there is so much misinformation, there 

is so much important education that needs to go along with this. 

This is what I used—and we used—in the State of Utah to pass 

effective, enforceable hate crimes legislation. I will just summarize 

this, if I can, in a few minutes some of those topics that I am talking about. 

First and foremost, I think, is we need to begin with the correct 

definition of hate crimes. We are not asking you to pass crimes that 

punish hate, that punish thought. We all support the first amendment of the Constitution, the right for people to hate, the right for 

people to say mean and horrible things. 

We are only supporting—in fact, this law, as proposed supports 

and makes a crime—actual criminal conduct—felonious, serious 

criminal conduct—that we as prosecutors can prove beyond a reasonable doubt was motivated by bias or prejudice against a particular group or member of that group. 

25

Another common myth or concern is that there are different 

types of crime; we ought to treat all crimes the same. For hundreds 

of years of our criminal jurisprudence in this country, we have recognized that we treat different crimes differently. For example, let’s 

say, God forbid, a child is killed by a drunk driver and another person’s child is killed, raped and assaulted in a premeditated way. 

Both children are dead, and it does not mean disrespect to the 

child killed by the drunk driver that we have a different penalty 

attached, based on the motivation, circumstances, at the time of 

the crime. 

So, clearly, it has been known in this country for hundreds of 

years that we punish, in the words of William Blackstone, those 

crimes most severely which are the most destructive of public safety and happiness, and literally, there is nothing more destructive 

of public safety than hate crimes, as recognized by the United 

States Supreme Court unanimous decision, a decision written by 

Chief Justice William Rehnquist in Wisconsin v. Mitchell. 

Bias-motivated crimes are more likely to provoke retaliatory 

crimes, inflict distinct emotional harms on their victims and incite 

community unrest than any other. They are a more serious crime 

that should be punished more severely, and we strongly urge you 

to pass this legislation. 

Thank you. 

[The prepared statement of Mr. Shurtleff follows:]

26

PREPARED STATEMENT OF THE HONORABLE MARK L. SHURTLEFF


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Mr. NADLER. And I thank the gentleman. 

Mr. Lynch? 

TESTIMONY OF TIMOTHY LYNCH, DIRECTOR,

PROJECT ON CRIMINAL JUSTICE, CATO INSTITUTE 

Mr. LYNCH. Thank you, Mr. Chairman. I appreciate the invitation to share my views with the Committee this afternoon. 

I know our time is short, so I am just going to outline three reasons why I think the proposed bill ought to be rejected: First, as 

a matter of law, the bill is inconsistent with our constitutional 

structure. Second, as a matter of policy, the bill is not necessary. 

And three, it is actually counterproductive. I think the bill is actually going to create more problems than it is going to solve. 

The bill is unconstitutional because it violates the legal doctrine 

of federalism. The 10th amendment to our Constitution says that 

the powers that are not delegated to the Federal Government are 

reserved to the States. 

Fighting crime is obviously a very important governmental responsibility, but it is one of those powers that was reserved to the 

State governments. Chief Justice John Marshall said it was clear 

that murders and felonies generally could not be punished by the 

Congress under our Constitution. 

As we know, the Federal criminal code has nevertheless expanded over the years. Past Congresses have relied upon the Commerce Clause to federalize crimes that are already on the books at 

the State and local level. But, from a historical perspective, much 

of that expansion has occurred in recent years. According to a report by the American Bar Association, more than 40 percent of the 

Federal criminal laws that have been enacted since the Civil War 

have been enacted just in the last 30 years. 

More importantly, the Supreme Court declared the Violence 

Against Women Act unconstitutional in 2000. In the Morrison case, 

the court said that if Congress could regulate gender-motivated violence, it could follow that Congress could bring murder and all of 

the other violent offenses within the Federal sphere. Since the 

Court is going to preserve the Constitution’s distinction between 

what is national and what is local authority, I expect the Supreme 

Court would invalidate this bill following the rationale of the Morrison ruling. 

But even if we put this fundamental constitutional principle to 

one side, I think there are additional reasons to reject the proposed 

legislation. This law is not necessary. All of the violent acts that 

would be covered by the bill—arson, explosive devices, shooting 

people—are already on the books, and these offenses are investigated and prosecuted every day. 

The bill is called the Hate Crimes Prevention Act, but it is not 

going to prevent anything. Any thug who is already inclined to stab 

or shoot another human being is not going to put down his weapon 

because Congress passes some new law. 

The argument has been made that hate crimes are different because they affect not only just the victim, but the entire community. Now, for some hate crimes, I think that is undeniably true, 

but the same thing can be said for other crimes as well, and the 

33

tragedy at Virginia Tech University yesterday, I think, is an example of this. 

I heard reporters last night and this morning talk about that it 

is not just the students who were shot and wounded and their families that are grieving. It is that entire Virginia Tech campus. The 

entire campus of 20,000 people has been deeply impacted by what 

happened. 

Now some people argue that there is no harm in passing a bill 

like this. Some people I have debated over the years on hate crimes 

have said, ‘‘Well, look, maybe this law will have a positive impact. 

Maybe it will not. Why not give it a try?’’ They do not see any 

downside to enacting bills like this. I think that view is mistaken 

because I think this bill can actually create more problems than it 

will solve. 

Now, given our time constraints, I will mention my most serious 

concern in this regard. I think the FBI needs to stay focused on alQaeda and terrorist groups. Former Attorney General Richard 

Thornburgh has made the point that one of the reasons the 9/11 

terrorists were able to avoid detection prior to the attacks was because the FBI had gotten distracted by other missions assigned by 

the Congress. Federal law enforcement resources are limited. Every 

time a State offense is federalized, investigative resources are distracted from the fight against terrorism into investigating street 

crimes. 

In my view, the primary reason we have not suffered another 

terrorist attack here at home is because our defense and law enforcement agencies have been very vigilant when it comes to investigative leads having to do with terrorists, sleeper cells that might 

be here on U.S. soil. We need to maintain this vigilance. 

I know 5 years have passed since the 9/11, but we have to remember that it took 8 years. Eight years passed between that initial attack on the World Trade Center in 1993 and when the terrorists came to finish the job in 2001. 

Let me conclude with one final point. At the end of the day, there 

is a supposition to the idea of bias crimes, and that is the proposition that vicious crimes that are motivated by a hatred, rooted in 

jealousy, envy and greed should be punished less severely than 

crimes that are motivated by racial and religious prejudice. It is 

not necessary or desirable for a hierarchy of hatred to be written 

into our criminal code. 

Thank you. 

[The prepared statement of Mr. Lynch follows:]

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PREPARED STATEMENT OF TIMOTHY LYNCH


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Mr. NADLER. I thank the gentleman. 

Our next witness is Dean Lawrence. 

TESTIMONY OF FREDERICK M. LAWRENCE, DEAN,

THE GEORGE WASHINGTON UNIVERSITY LAW SCHOOL 

Mr. LAWRENCE. Thank you, Mr. Chairman. 

Mr. Chairman, I am honored to be asked to testify here today in 

support of H.R. 1592, the Hate Crimes Prevention Act. 

Mr. Lynch has called up the concerns of terrorism and the post9/11 world. I would say that it is precisely because we live in a 

post-9/11 world that we have to remember precisely what is most 

precious about this society, and that is the right not only to be different and to be an American, as one who chooses to be an American, but to be safe and physically secure. It is precisely that that 

underpins what this legislation is about. 

There are a number of issues that this legislation raises, Mr. 

Chairman. I would like to, in my brief time here, address four. 

First, much is said of ‘‘Why punish motivation?’’ We punish motivation in a bias crime law, such as the Hate Crimes Prevention 

Act, not because we are punishing thoughts; we are punishing 

harm, and it is precisely the motivation of a bias crime that makes 

the harm worse. 

I would say two additional things about motivation that we 

should focus on. One is that motivation is the key to the definition 

of bias crimes because, in fact, that is what causes the greater 

harm to the individual, to the entire target community, to the society. 

The second is that we are not breaking new ground here when 

we look at a motivation in the criminal law. As General Shurtleff 

said earlier, motivation has always been looked at, and it is not 

just that it says who is more punishable; it actually says whether 

the harm is worse. 

The great Justice Oliver Wendell Holmes observed, ‘‘Even a dog 

knows the difference being tripped over and being kicked.’’ It could 

be the exact same physical injury, but the difference between being 

tripped over and kicked over is that notion of a personal physical 

invasion of the self and that a hate crime is precisely not just being 

kicked because of where you are or who you are; it is being kicked 

because of what you are. 

I would also add that a whole host of civil rights statutes dealing 

with employment and housing and a whole array of antidiscrimination laws turned precisely on motivation and the issue of motivation. An act of firing an individual in most States that could be perfectly legal for any reason becomes illegal because of the motivation 

of the actor. 

Similarly, when we turn to my second issue, that of free expression and the first amendment, as has been said earlier, in Wisconsin against Mitchell, a unanimous Supreme Court upheld the 

constitutionality of a bias crime law. And why? Because, as Chief 

Justice Rehnquist said, we are not punishing thoughts. We are 

punishing action. We are not punishing expression. We are punishing the acting on those expressions in a violent way. 

40

Similarly, when the Supreme Court upheld the cross burning 

statute in Virginia, in Virginia against Black, the court said that 

one may focus on act, not on expression of ideas. 

And the concern that had been raised earlier with respect to 

complicity, what about those who give speeches that others may 

rely on? Complicity is a well-known doctrine in the criminal law 

that requires an intent to see the crime happen. 

There will be no punishment under this statute or any statute 

for someone expressing views. There will certainly be the potential 

for punishment for someone who acts with the intent to see a bias 

crime happen, and there should be. 

This law would add to the arsenal of Federal law protectin gender, sexual orientation, gender identity and disability. All of these 

are aspects of violence that we have seen in the society. They have 

been measured by the FBI pursuant to its authority under the 

Hate Crimes Statistic Act and by private civil rights groups, such 

as the Anti-Defamation League and the Human Rights Campaign, 

in monitoring the existence of bias crimes. 

The inclusion of gender, sexual orientation, gender identity and 

disability in the Hate Crimes Prevention Act fills an important gap 

left in Federal bias crime law enforcement, both by the Violent 

Crime Control and Law Enforcement Act of 1994 and by the Civil 

Rights Act of 1968. 

Let me conclude, Mr. Chairman, by addressing the federalism 

issues. First as to the Constitution, the constitutional basis for this 

statute is found with respect to many of the groups, particularly 

race and ethnicity, in the 13th amendment, but with respect to all 

of the groups in the Commerce Clause. 

Mr. Lynch mentioned earlier the Morrison case in which the 

court struck down the Violence Against Women Act, but, in fact, 

precisely what the court said in Morrison is there was no jurisdictional predicate in that law, and this bill precisely had a jurisdictional predicate. So there certainly is jurisdictional authority. 

With respect to the relations between Federal and State governments, I would say several things. First of all, those who would 

protect the province of local law enforcement would do well to listen to district attorneys and attorneys general who have embraced 

this legislation, as we just heard earlier. Secondly, all we would do 

is bring bias crimes within the realm of law enforcement generally, 

where Federal and State entities have managed to work together 

in a cooperative way. 

What we would expect is what I saw as an assistant U.S. attorney for 5 years in the Southern District of New York where local 

and Federal authorities worked together, and depending on the 

case, depending on who has the best statute, the case will be 

brought appropriately. This law will permit that to happen. 

Thank you, Mr. Chairman.

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PREPARED STATEMENT OF FREDERICK M. LAWRENCE


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TESTIMONY OF DAVID RITCHESON, HARRIS COUNTY, TX 

Mr. RITCHESON. Mr. Chairman and Members of the Committee, 

thanks for inviting me today to be a witness. My name is David 

Ritcheson, and I appear before you as a survivor of one of the most 

despicable and shocking acts of hate violence this country has ever 

seen in decades. 

Nearly 1 year ago on April 22, 2006, I was viciously attacked by 

two individuals because of my heritage as a Mexican-American. 

After a crawfish festival, I returned to a friend’s house where I 

was going to spend the night. Shortly after arriving at this home, 

a minor disagreement turned into a pretext for what I believe was 

a premeditated hate crime. This was a moment that would change 

my life forever. 

After I was sucker-punched and knocked out, I was dragged into 

the backyard for an attack that would last for over an hour. Two 

individuals, one an admitted racist skinhead, attempted to carve a 

swastika on my chest. After they stripped me naked, they burned 

me with a cigarette, and I was kicked by the skinhead’s steel-toed 

army boots. 

Witnesses recall the two attackers calling me a wetback and a 

spic as they continued to beat me as I lay unconscious. Once the 

attack came to an end, I was dragged to the rear of the backyard 

and left for dead. Reportedly, I lay unconscious in the backyard of 

the private residence for the next 8 to 9 hours. Fortunately, God 

spared me the memory of what happened that night. 

Weeks later, I woke up in the hospital with so many emotions: 

fear, uncertainty, humiliation. America is the country I love, and 

it is our home. However, the hate crime committed against me illustrates that we are still, in some aspects, a house divided. 

These are some of the many reasons I am here before you today 

asking that our government take the lead in stopping individuals 

like those who attacked me from committing crimes against others 

because of where they are from, the color of their skin, the God 

they worship, the person they love or the way they look, talk or act. 

I spent 3 months in the hospital and had over 30 surgeries. Most 

of these operations were essential to saving my life, and others 

were necessary just to make my body able to perform what would 

be normal functions. My family would not have been able to afford 

these surgeries without help from our community and from all over 

the world. 

My family told me of the crowded waiting rooms full of great 

friends. I heard about prayer groups in front of my school, the 

Klein Collins Campus. 

As the recovery process continued, my family began to slowly tell 

me what had happened to me. I learned that one of the attackers, 

David Tuck, was a self-proclaimed racist skinhead who had viciously attacked at least two other Hispanics in the past few years, 

almost killing one of them. I learned that he had been in and out 

of several juvenile facilities and had just been released from the 

Texas Youth Commission. I was told that he had White power and 

swastika tattoos on his body. 

How could this type of hate crime have occurred just miles from 

my home in a city as diverse as Spring? 

68

I benefited from the support of groups such as the Anti-Defamation League and the League of United Latin American Citizens. 

There are so many people to thank for the support they have given 

me, including the ongoing encouragement to appear before you 

today. 

Last November and December, I sat in a courtroom in Harris 

County, Texas, and I faced my attackers for the first time as they 

went on trial. I am glad to say that justice was done, and both individuals who attacked me received life sentences. Specifically, I 

want to recognize the great job that Assistant District Attorney Michael Trent did during the prosecution of these two individuals. 

However, despite the obvious bias motivation of the crime, it is 

very frustrating to me that neither the State of Texas nor the Federal Government was able to use hate crime laws to prosecute my 

attackers. I am upset that neither the Justice Department nor the 

FBI was able to assist in the investigation of my case because the 

crime did not fit the hate crime laws. 

Today, I urge you to approve the Local Law Enforcement Hate 

Crimes Prevention Act. I was fortunate to live in a town where police had the resources, the ability and the will to effectively investigate and prosecute the hate violence directed against me. But 

other bias crime victims may not live in such places. Local prosecutors should be able to look to the Federal Government for support 

when these types of crimes are committed. Most importantly, these 

crimes should be prosecuted for what they are: hate crimes. 

I believe that education can have an important impact by teaching against hate and bigotry. In fact, I have encouraged my school 

and others to adopt the Anti-Defamation League’s No Place for 

Hate program. If these crimes cannot be prevented, the Federal 

Government must he have the authority to support State and local 

bias crime prosecutions. 

My experience over the last year has reminded me of the many 

blessings I took for granted. With my humiliation and emotional 

and physical scars came the ambition and strong sense of determination that brought out the natural fighter in me. I realized just 

how important family and the support of community truly are. 

I will always recall my parents at my bedside providing me with 

strength and reassurance. They showed me how to be strong during my whole recovery, a process I am still going through today. 

Seeing the hopeful look of concern in the faces of my siblings, cousins, aunts and uncles every day was the direct support I needed to 

get through those terrible first few months. As each day passed, I 

became more and more aware of everything I had to live for. I am 

glad to tell you today that my best days still lie ahead of me. 

Thank you for the opportunity to tell my story. It has been a 

blessing to know that the most terrible day of my life may help put 

another human face on the campaign to enact a much-needed law 

such as the Local Law Enforcement Hate Crimes Prevention Act. 

I can assure you, from this day forward, I will do whatever I can 

to help make our great country, the United States of America, a 

hate-free place. 

Thank you. 

[The prepared statement of Mr. Ritcheson follows:]

69

PREPARED STATEMENT OF DAVID RICHESON

I appear before you as a survivor of one of the most despicable, shocking, and heinous acts of hate violence this country has seen in decades. Nearly one year ago 

on April 22, 2006, I was viciously attacked by two individuals because of my heritage as a Mexican-American. After hanging out with a few friends at a local crawfish 

festival, my friend and I, along with the two individuals who would eventually attack me, returned to the home in Spring, Texas where I was to spend the night. 

It was shortly after arriving at this private residence that a minor disagreement between me and the attackers turned into the pretext for what I believe was a premeditated hate crime. This was a moment that would change my life forever. After 

I was surprisingly sucker punched and knocked out, I was dragged into the back 

yard for an attack that would last for over an hour. Two individuals, one an admitted racist skinhead, attempted to carve a swastika on my chest. Today I still bear 

that scar on my chest like a scarlet letter. After they stripped me naked, I was 

burned with cigarettes and savagely kicked by this skinhead’s steel toed army boots. 

After burning me in the center of the forehead, the skinhead attacker was heard 

saying that now I looked like an Indian with the red dot on my forehead. Moreover, 

the witnesses to the attack recalled the two attackers calling me a ‘‘wetback’’ and 

a ‘‘pic’’ as they continued to beat me as I lay unconscious. Once the attack came 

to an end, I was dragged to the rear of the back yard and left for dead. Reportedly, 

I lay unconscious in the back yard of this private residence for the next 8–9 hours. 

It was not until the next morning that I was found and the paramedics came to 

my aid. I am recounting this tragic event from the testimony I heard during the 

trial of the two attackers this past fall. God spared me the memory of what happened that night. As I sit before you today, I still have no recollection of those life 

changing twelve hours or the weeks that followed. 

Weeks later I recall waking up in the hospital with a myriad of emotions, including fear and uncertainty. Most of all, I felt inexplicable humiliation. Not only did 

I have to face my peers and my family, I had to face the fact that I had been targeted for violence in a brutal crime because of my ethnicity. This crime took place 

in middle-class America in the year 2006. The reality that hate is alive, strong, and 

thriving in the cities, towns, and cul-de-sacs of Suburbia, America was a surprise 

to me. America is the country I love and call home. However, the hate crime committed against me illustrates that we are still, in some aspects, a house divided. I 

know now that there are young people in this country who are suffering and confused, thirsting for guidance and in need of a moral compass. These are some of the 

many reasons I am here before you today asking that our government take the lead 

in deterring individuals like those who attacked me from committing unthinkable 

and violent crimes against others because of where they are from, the color of their 

skin, the God they worship, the person they love, or the way they look, talk or act. 

I believe that education can have an important impact by teaching against hate 

and bigotry. In fact, I have encouraged my school and others to adopt the Anti-Defamation League’s No Place for Hate(r) program. If these crimes cannot be prevented, 

the federal government must have the authority to support state and local bias 

crime prosecutions. 

As the weeks in the hospital turned into months, I began hearing the stories of 

support that came from literally all over the world. The local community pulled together in a really majestic way, reaffirming my hope in the good of humanity. My 

family told me about the crowded waiting rooms full of the great friends from past 

and present. I heard about prayer groups before school in front of my school, the 

Klein Collins Campus. The donations that helped my family and me get through an 

unthinkable time poured in from generous people scattered across the globe. These 

donations would help pay for the enormous hospital bills from the over thirty surgeries I underwent during the first three months after the attack. Most of these operations were essential to saving my life—and others were necessary just to make 

my body able to perform what would be normal functions. 

As the recovery process continued, my family began to slowly inform me of what 

had happened to me. They went on to tell me of the effective response by the Harris 

County Sheriff’s Department and the Harris County Constables who had investigated the hate crime committed against me. I slowly began learning the about the 

background of the two individuals who had been arrested for attacking me. I was 

informed that one of the attackers, David Tuck, was a self proclaimed racist skinhead who had viciously attacked at least two other Hispanics in the past few years, 

almost killing one of them. I learned that he had been in and out of several juvenile 

facilities. Most surprising, I learned that he had been released from the Texas 

Youth Commission a little over a month before he attacked me. In fact, he was still 

on probation the night he nearly ended my life. I was told that he had ‘‘white 

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power’’ and swastikas tattoos on his body. I was informed that his older step brother, a major influence in his life, was also a self-proclaimed skinhead currently serving time in a Texas jail. Here I was, learning shocking details of a person who lived 

only miles from me and who had at one time attended the same high school that 

I attended. How could this type of hate be breeding just miles from my home in 

a city as diverse as Spring without anyone taking notice? 

I quickly learned of and benefited from the support of groups such as the AntiDefamation League (ADL) and League of United Latin American Citizens (LULAC). 

Both groups immediately provided whatever support they could to help me and my 

family. From setting up fundraisers to help my family with unanticipated expenses 

to providing emotional support confirming that I was not going through this alone, 

both groups were instrumental in assisting me and my family in the process of moving forward. There are so many people to thank for the support they have given 

me, including the ongoing encouragement to appear before you today. 

Last November and December I sat in a courtroom in Harris County, Texas and 

faced my attackers for the first time as they went through their respective trials. 

I am glad to say that justice was done. I am proud of the job our county prosecutors 

and investigators did in ensuring life sentences for the two individuals who attacked 

me. Specifically, I want to recognize the great job that Assistant District Attorney 

Mike Trent did during the prosecution of these two individuals. However, despite 

the obvious bias motivation of the crime, it is very frustrating to me that neither 

the state of Texas nor the federal government was able to utilize hate crime laws 

on the books today in the prosecution of my attackers. I am upset that neither the 

Justice Department nor the FBI was able to assist or get involved in the investigation of my case because ‘‘the crime did not fit the existing hate crime laws.’’ Today 

I urge you to take the lead in this time of needed change and approve the ‘‘Local 

Law Enforcement Hate Crimes Prevention Act of 2007’’. I was fortunate to live in 

a town where local law enforcement authorities had the resources, the ability—and 

the will—to effectively investigate and prosecute the hate violence directed against 

me. But other bias crime victims may not live in such places. I ask you to provide 

authority for local law enforcement to work together with federal agencies when 

someone is senselessly attacked because of where they are from or because of who 

they are. Local prosecutors should be able to look to the federal government for support when these types of crimes are committed. Most importantly, these crimes 

should be called what they are and prosecuted for what they are, ‘‘hate crimes’’! 

In fact, because there was so much attention focused on the fact that my case was 

not being prosecuted in Texas as a hate crime, the Anti-Defamation League and the 

Cook County (Illinois) Hate Crimes Prosecution Council published a Pamphlet called 

‘‘Hate Crimes Data Collection and Prosecutions:Frequently Asked Questions,’’ designed to address some of the basic legal and practical considerations involved in 

labeling and charging a hate crime. 

My experience over the last year has reminded me of the many blessings I took 

for granted for so long. With my humiliation and emotional and physical scars came 

the ambition and strong sense of determination that brought out the natural fighter 

in me. I realized just how important family and the support of community truly are. 

I will always recall my parents at my bedside providing me with strength and reassurance. They showed me how to be strong during my whole recovery, a process I 

am still going through today. Seeing the hopeful look of concern in the faces of my 

siblings, cousins, aunts and uncles everyday was the direct support I needed to get 

through those terrible first few months. As each day passed, I became more and 

more aware of everything I had to live for. I am glad to tell you today that my best 

days still lay ahead of me. 

Thank you for the opportunity to tell my story. It has been a blessing to know 

that the most terrible day of my life may help put another human face on the campaign to enact a much needed law such as the ‘‘Local Law Enforcement Hate Crimes 

Prevention Act of 2007.’’ I can assure you, from this day forward I will do what ever 

I can to help make our great county, the United States of America, a hate free place 

to live.

Mr. NADLER. Mr. Dacus? 

TESTIMONY OF BRAD W. DACUS, PRESIDENT,

PACIFIC JUSTICE INSTITUTE 

Mr. DACUS. Thank you very much. 

The Pacific Justice Institute, an organization which I am privileged to lead, focuses on the defense of religious and civil liberties. 

71

From that vantage point, we encounter not just theoretical, but 

practical, real-life problems engendered by this type of legislation. 

The Committee has already been apprised of the federalism concerns implicated by the legislation. I would now like to focus briefly 

on another problem with this legislation: The alarming potential, 

as evidenced by actual cases and situations, for well-intentioned 

hate crimes legislation to squelch free speech, particularly religious 

free speech. 

This has been particularly evident in California, which has taken 

a very aggressive approach to hate crimes enforcement. Specifically, let me just give you point-blank an example for the sake of 

time. In California, the State capital of California, Sacramento, 

there was a day of silence, a day used to promote tolerance, and 

yet it was on this day of silence where some Slavic immigrants 

from the former Soviet Union, very firm in their religious beliefs 

and convictions on the matter, wore purely religious-based T-shirts 

with religious messages on the issue of homosexuality. 

They were greeted not only with mocking and names, but they 

had food thrown at them and were punched, assault and battery, 

and then they were taken to the principal’s office where they were 

told that they had to remove their shirts or be suspended for 2 

days. After praying about it, they came back to the principal, and 

they said, ‘‘If we have to choose between being suspended and having to deny our faith, go ahead and suspend us because we will not 

deny our faith.’’

Members of this Committee, that was done under the context of 

hate crimes. That is exactly what we are talking about taking place 

in the State of California right now. To make it more specific, there 

was a case that came down in California called Harper v. Poway 

Unified School District. That was the case specifically. It was very, 

very similar to this case. The gentleman wore a T-shirt, offensive, 

the same subjects. 

However, Judge Reinhardt, in his decision for the Ninth Circuit 

Court of Appeals, sort of famous in California, cited the hate violence education statute, College Education Code, Section 201 and 

220, as justification for stifling a peaceful but politically incorrect 

opposing viewpoint. 

Though there were no allegations of violence against Harper, the 

court nonetheless concocted a theory of ‘‘psychological assault’’ 

against homosexual students which it reasoned were just as harmful and, therefore, just as subject to censorship and sanction. 

Once again, this is not a hypothetical. This is the reality. Fortunately for us, we have a Supreme Court that vacated that erroneous decision. 

In addition to finding it in the public schools, we have something 

even more direct, and that is dealing with an actual pastor, not a 

theoretical pastor, an actual pastor. He is Pastor Yancey, a wonderful man with a strong conviction and belief in his Christian faith. 

We were called to defend him after he was summoned before a 

local human relations task force pursuant to the county for distributing religious tracts. These tracts depicted 9/11 terrorist acts and 

stated, ‘‘Remember 9/11. In the name of Allah, they brought destruction and death to thousands. In the name of Jesus Christ, you 

can have eternal life.’’

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Now it is hard to imagine a situation more in line with the Supreme Court’s long list of leafleting precedents, such as Martin v. 

Struthers or Watchtower Bible v. Village of Stratton. Yet Pastor 

Yancey was accused of hate speech against all Muslims and was 

threatened. 

Thankfully, we were able to successfully defend the pastor 

against these charges, but it is alarming—most alarming—to think 

that some officials believe that under the pretext of preventing 

hate speech, they can interrogate a clergyman concerning purely 

religious statements. 

Ironically, by the way, Pastor Yancey served 20 years in the Marine Corps and understands religious freedom very well, as I am 

sure the Members of this Committee do as well. 

Finally, we have an actual attempt to intimidate pastors through 

this procedure. It has been said that—we are dealing with complicity here—pastors cannot be prosecuted, as mentioned earlier. 

There is nothing wrong with free expression. 

Well, if you were to take on one of these cases where one of their 

members is accused of a hate crime, there is going to be some interrogating. There are going to be some subpoenas. Pastors can be 

subpoenaed, every member of their parish, their congregation could 

be subpoenaed and intimidated to never mention certain words 

ever again Sunday morning or during our synagogue services. That 

is the reality that we are talking about with regard to the criminal 

process, and that is why we see this as such an egregious violation 

for liberty. 

A decision by Congress to inject the Federal Government via this 

hate crimes bill into the culture wars of fundamental theological 

disputes can only engender further divisiveness and limitations on 

free speech. This Congress has sworn to uphold the Constitution 

and the rights therein, but if this hate crimes bill becomes law, 

which we contend is unconstitutional, then the Pacific Justice Institute and others just like us will have no choice but to heavily challenge it in the courts. I petition you to not put us in that situation. 

Thank you for your time. 

[The prepared statement of Mr. Dacus follows:]

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PREPARED STATEMENT OF BRAD W. DACUS


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Mr. NADLER. I thank the gentleman. 

And now we will hear from Dean McDevitt. 

TESTIMONY OF JACK McDEVITT 

Mr. MCDEVITT. Thank you very much, Chairman. It is a real 

honor today to be here to be able to stand in support of the Hate 

Crimes Prevention Act of 2007. 

I have done 20 years of my life researching hate crimes, talking 

to police officers, talking to victims, and I think that we understand today that we are in the process of being able to really support and take this legislation to the next step. 

In addition, I have trained thousands of law enforcement officers 

over the past 20 years on how to investigate and how to identify 

hate crimes, and in that training, I have learned how difficult hate 

crimes are for law enforcement to investigate and how they need 

the support of outside groups to be able to help them identify it. 

I think that the legislation we consider today can significantly 

improve the lives of victims of hate violence by providing Federal 

assistance, by providing grants and providing additional information on crimes motivated by gender and gender identity and crimes 

committed by juveniles. 

Many points have already been made. A couple of points that I 

wanted to touch on is this legislation—and the hate crime legislation around the country—protects all of us. It does not protect special groups. It protects everybody in this room. 

If we were to look at the anti-race hate crimes in the last year, 

11.5 percent of the incidents reported to the police were incidents 

of anti-White hate crime. When we are talking about hate prosecutions, the prosecutors go forward and bring hate charges on crimes 

that are motivated by hate, not in speech, and as we look at the 

State cases, we see that is the vast, vast majority of cases. 

And one other thing, as an academic, I would say that the hate 

crimes reporting statute of 1990 provided information that would 

allow the academic community to work with law enforcement and 

work with prosecutors to give the law enforcement more tools to be 

able to answer these cases. We were able to develop a typology 

which allowed police officers to do better investigations and end up 

making batter arrests and getting better convictions. 

So what I would say is that one of the keys that we have not 

touched on yet is the role of local law enforcement. As the Chairman said, this bill is to support local law enforcement. It is not to 

move law enforcement out of the way. What I found through years 

of working with local law enforcement is they are the keys to understanding hate crimes. They are the keys to being able to deal 

with it, identify it and then develop a case that can result in prosecution. 

What we have learned from the 1990’s is that the FBI has been 

a strong advocate of local law enforcement in helping to train officers in how they would identify and how they would investigate 

hate crimes. The FBI went around the country and did training 

after the 1990 act, and they have been still standing by to help. 

But they have been limited by the ability of local law enforcement to call on them and resources. This legislation will allow local 

law enforcement to be able to have the opportunity to reach to the 

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FBI when they need it, to get the expertise to be able to conduct 

these investigations and to be able to then come forth with prosecutions about these crimes which really seriously do tear our society 

apart. 

I think one of the keys to understanding all of this is that we 

understand that these are crimes which are serious to our communities. As you have said in some of your opening statements, these 

crimes can tear a community apart. 

As we have spoken to victims around the country and we have 

talked to different groups, one of the things that we tend to hear 

over and over again is that victims feel much better if they are in 

a place where there is a statute that protects him. That is one of 

the most important things they say. Is there a statue? Is there 

something the police can do to protect us? This legislation will 

allow that across the country, to be able to have support, have resources and to be able to understand further the dynamics of hate 

crimes in the United States. 

Thank you very much. 

[The prepared statement of Mr. McDevitt follows:]

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Mr. NADLER. Thank you. 

And I thank the witnesses. 

I will begin the questions by recognizing myself for 5 minutes. 

My first two questions are to Mr. Lawrence. 

In his testimony, Mr. Lynch mentions the murders of Matthew 

Shepard and James Byrd as examples that Federal assistance is 

not needed. However, wasn’t the Laramie Police Department forced 

to furlough five employees in order to fully investigate and prosecute the crime, and didn’t Jasper, Texas, apply for and receive 

$284,000 in special Federal grants to enable it to do that? 

Don’t these two examples actually show that Federal assistance 

is needed to provide a crucial backstop for State and local authorities? 

Mr. LAWRENCE. Absolutely, Mr. Chairman. In both cases, Federal 

authority was needed or Federal support was needed, and what actually happened in Jasper, Texas, where Federal funds were provided and where Federal support actually came because of the use 

of public highways, which, in fact, was only tangential in the reality of the case of James Byrd. It became essential because of the 

way in which the statute was written. The reality of the James 

Byrd murder case is it was a racially motivated murder. That is 

where the Federal interest came from. So I think that is exactly 

right. 

I would also add that in both cases where they were murder 

cases, one is tempted to say you do not need an additional penalty 

because of the existence of the death penalty. The fact is the vast 

majority of bias crime cases are not murder cases. They are assault 

or vandalism. With the enhanced punishment, it would make a 

great deal of difference. 

Mr. NADLER. Thank you. 

And also, in his testimony, Mr. Lynch discusses the Supreme 

Court ruling in Lopez as limiting Congress’s ability to federalize 

criminal activity on the basis of affecting interstate commerce. 

Now there is a subsequent Supreme Court case, U.S. v. Morrison. Doesn’t that case clarify Congress’s authority in such matters 

and does this legislation meet the requirements for constitutionality as set forth in Morrison? 

Mr. LAWRENCE. I think it does. I think Morrison actually is a 

case in which the Supreme Court struck down a part of the statute 

and gave a blueprint to Congress as to how to go about doing these 

cases in the future and these statutes in the future and make clear 

that they wanted Congress to be more careful as to how it implicated the Commerce Clause authority. 

The exact piece of the Supreme Court ruling in Morrison was 

that a jurisdictional predicate was essential to uphold these statutes. That is precisely what this statute has. It requires a tight 

nexus between interstate commerce and the actual bias crime involved, and the prosecution must prove that and, as any other element of the case, must prove it beyond a reasonable doubt. 

Mr. NADLER. Thank you. 

Attorney General Shurtleff, one of the arguments we hear from 

opponents of this legislation is that it will interfere with the authority of State and local law enforcement. Your presence here 

today suggests that State authorities would welcome this legislaVerDate 0ct 09 2002 14:53 May 20, 2008 Jkt 000000 PO 00000 Frm 00117 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041707\34756.000 HJUD1 PsN: 34756
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tion. You mentioned 26 attorneys general, which is a majority of 

the State attorneys general. 

Could you give an example of how this legislation will be beneficial for State and local law enforcement? 

Mr. SHURTLEFF. Mr. Chairman, thank you. 

After September 11 and before Utah had an enforceable hate 

crimes statute, a man bombed a local Pakistani restaurant named 

Curry in a Hurry. Because Utah did not have an enforceable law, 

we absolutely had to rely on the limited Federal Government jurisdiction in that case to be able to bring some punishment. 

Mr. NADLER. Since Utah now has such a law, why do you need 

a Federal law? 

Mr. SHURTLEFF. Well, in fact, we have a law. It is not based on 

categories. It is only based on an enhancement that the judge can 

give. It is not an automatic enhancement. So we prefer the ability 

to have very articulated categories. 

It is also the fact that it consistently says ‘‘at the request of the 

State,’’ working with the State or local authorities. We have some 

excellent relationships with the Federal Government when it comes 

to crimes that cross State borders—for example, Project Safe 

Neighborhood involving guns or Internet Crimes Against Children, 

Project Safe Childhood, and so forth. 

In this case, in these types of crimes, so often the target group 

goes beyond State borders. In those situations, we really need the 

Federal Government to step in and help us out. 

Mr. NADLER. Thank you. 

Some opponents claim that this legislation will interfere with 

first amendment rights of speech and association by requiring prosecutors to inquire into assailants’ past associations to prosecute 

cases. Briefly, because I have one more question, can you speak to 

this issue? 

Mr. SHURTLEFF. Absolutely. In fact, those examples given by Mr. 

Dacus are really red herrings because none of those would be 

charged in this case because you have to have a specific felonious 

crime, a crime of violence, plus the perceived motivation by prejudice or bias. 

But in addition, it specifically states in the rules of evidence that 

prosecutors cannot use evidence of expression, of their associations. 

They may belong to hate groups, they may have actually written 

things regarding their hatred toward certain groups, but we have 

to be able to use those as exact evidence of the crime and the evidence specifically relates to the crime. 

So you would have to have a situation where the pastor, for example, in a meeting would say, ‘‘Let’s go burn down a mosque because Islam is the devil,’’ and then lead the group down there to 

burn the mosque. 

Mr. NADLER. Okay. Thank you. 

Final question, Dean McDevitt: The legislation would add gender 

and gender identity to the categories of hate crime statistics collected by the FBI. Briefly, why would the addition of these categories be so crucial in your opinion? 

Mr. MCDEVITT. I think that one of the things that we can start 

to understand in this by starting to get the data for this is: What 

is a gender hate crime? 

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I think that different States are struggling now with how to define it—as you have seen in different States, some of the limitations on how to define it are really setting the bar awfully high—

and also gender identity crime. This will allow the FBI to accumulate information and pass it back to local law enforcement about 

what are the characteristics of these crimes so they can investigate 

them, so they can go forward and be able to prosecute them. 

Mr. NADLER. Thank you very much. 

My time is expired. I now recognize for 5 minutes the gentleman 

from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

First of all, Mr. Ritcheson, you certainly have the sympathy and 

the admiration of all of us here on this panel and I think the witnesses with you. What you went through is intolerable. 

As I understand it, the perpetrators were prosecuted under local 

law—is that correct—State crime law? Is that your understanding? 

Mr. RITCHESON. Yes, sir. 

Mr. GOHMERT. And did they both get the life sentence? 

Mr. RITCHESON. One of them, David Tuck, received a life sentence, and Keith Tanner received 90 years. 

Mr. GOHMERT. How many years? 

Mr. RITCHESON. Ninety years. 

Mr. GOHMERT. Ninety years. 

Mr. RITCHESON. Yes, sir. 

Mr. GOHMERT. And in Texas, anything over 60 years is computed 

as a maximum or a 60-year sentence. 

So the law we are passing today, as horrible as that was in your 

situation, this law really would not affect it. They already basically 

got, in effect, a maximum sentence under State law. Is that right? 

Mr. RITCHESON. Yes, sir. 

Mr. GOHMERT. Okay. 

Dean Lawrence, you had mentioned the mental harm that obviously accrues to anyone who is a victim of a hate crime. Have you 

done any or have you seen any studies on the mental harm to victims of random, senseless acts of violence? Are you saying they are 

not affected nearly like somebody that is a victim of a hate crime? 

Mr. LAWRENCE. No, I would not say that they are not affected 

at all, certainly, and that is why there are severe penalties for 

those crimes. But I guess I would say two things. 

One is that studies that have been done and cited in my written 

testimony show that overwhelmingly victims of bias crimes do suffer higher levels of depression, of hypertension and of a sense of 

alienation from society. It is hard to do exact comparisons, because 

what would the exact same crime look like without bias motivation, 

but the studies that have been done, both in the workplace and in 

other studies, demonstrate that. 

The other thing, of course, is that this statute itself is not a penalty enhancement statute. It is about giving additional Federal authority——

Mr. GOHMERT. Well, you are aware it sets new penalties. It creates new hate crimes. Are you aware of that? 

Mr. LAWRENCE. Correct. 

Mr. GOHMERT. Yes. 

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Mr. LAWRENCE. But the point is that what this is really about 

is the articulation of a special category of crime, and although I 

certainly believe and have written that there should be——

Mr. GOHMERT. Well, basically, we are federalizing a State crime 

at this point. Certainly, it is federalizing Texas State crime, and I 

appreciate your perspective. 

Attorney General Shurtleff had indicated we need federal—and 

I have heard you say a couple of times this will only apply to felonious assaults or actions. 

You are aware of the language in this bill that makes it a crime 

for bodily injury—and I am not familiar with Utah laws—but in 

Texas, bodily injury is a simple assault, even just pushing somebody, even touching somebody offensively, where someone can 

claim even no matter, as the law says in Texas, how temporary the 

pain or discomfort might be. That is sufficient to be bodily injury. 

You are aware of that right? 

Mr. SHURTLEFF. Well, I am aware that there are actually two different types of crime described. The one is at the request of the 

State they can come in only in the case of violent felony plus——

Mr. GOHMERT. Well, I am asking you specifically about the offenses that are created here and the conduct that is addressed and 

that it involves either something involving a fire, a fire arm or 

something like that, but there is an aura between those, and the 

first one is for causing bodily injury. You have seen that, right? 

Mr. SHURTLEFF. I have seen that. I was trying to explain, Representative, that it is two-part. That part has to do with the specific evidence of crime being involved with interstate commerce and 

across State borders and so forth. Yes. In that case, it is limited 

in within those certain categories, but it also, in section 4, requires 

a violent felony. 

Mr. GOHMERT. Well, but that does not address my point. You 

keep saying felonious conduct. In Utah, is a simple assault a felony? 

Mr. SHURTLEFF. No, it is not, but I am saying this proposed law 

does include both the felonious conduct and also different types of 

crimes for——

Mr. GOHMERT. Okay. So you referred to it as felonious because 

we are creating a new law that makes a simple assault a felony 

under Federal law. But, right now, as the law stands, it is not felonious conduct to simply push somebody or commit a simple assault. 

Isn’t that correct? 

Mr. SHURTLEFF. It is, but as I am trying to point out to the representative, there two parts in this proposed law. What I refer to 

as the felonious conduct is one section. You are referring to another 

section. You are absolutely correct. In that section with regard to 

interstate commerce, it only requires battery which would not be 

a felony. 

Mr. GOHMERT. Okay. Well, I appreciate you making the distinction that there are two parts because, earlier, you made the blanket statement that this will only apply to criminal felonious conduct, and you broke that up, but I am glad you clarified so it does 

not just apply to felonious conduct. 

Also, I would like to comment in my last 30 seconds. The Chairman had made the comment about my opening statement, and I 

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have tremendous respect for the Chairman. I admire him greatly 

as an individual. 

You talk about the debate and conduct. We go after it pretty good 

with words in this body, but I know you would never harm me 

physically and I would never harm you physically, and that is a 

distinction that we make. So, hopefully, we will not end up committing crimes just by our debate. 

But I thank the Chairman. 

Mr. NADLER. I would point out the last caning on the floor was 

in 1859 and helped bring on the Civil War. 

Thank you very much. 

I will now recognize the distinguished gentleman from Michigan, 

the Chairman of the Committee. 

Mr. CONYERS. Thank you, Mr. Chairman. 

Boy, am I relieved to find out that we will not go to violence in 

this Committee now that Mr. Gohmert has assured me of my safety. 

And I can mutually assure you of your own, Mr. Gohmert, as one 

who has supported and led this legislation for a decade. 

Let me start with Mr. Dacus, because I want you to know that 

this is a pretty friendly Committee you are coming before. There 

are different kinds of Committees, different levels of debate, but I 

just want you to be assured—and I want to know that you are—

that unless there is a violent act involved in the act being debated, 

there is no hate crime involvement at all. 

And so that would mean, sir, that every one of your examples 

would not have any application to the bill that is under consideration. 

Mr. DACUS. May I respond? 

Mr. CONYERS. Yes, of course. 

Mr. DACUS. Thank you. I appreciate you making that point. 

The truth of the matter is, in California, the first thing that was 

enacted was a hate crime bill based upon harm, and now built from 

that was the California Education Code section which was cited by 

Reinhardt, and specifically 220 directly applies in references to 

those violent hate crimes. 

Mr. CONYERS. In other words, you are telling me then that there 

can be prosecutions that do not involve violent conduct? 

Mr. DACUS. In California, that is correct, and the point is that 

first we had the hate crimes involving violence, and then from 

there we have built these other legislative avenues. 

Mr. CONYERS. Okay. Let’s do this——

Mr. DACUS. That is the road we have started down. 

Mr. CONYERS. Can I send you some information about that? Because I see that this is going to take up more time than I wanted. 

I did not know you were aware of what I am saying, but we will 

all stay tuned. 

Now, ladies and gentlemen, the fact of the matter is that we 

have been federalizing State criminal conduct for a long time. I 

mean, this is not a new leap into criminal jurisprudence. And I do 

not know why my staff calculated this on the basis of Federal 

crimes enacted into law during Republican control of the Congress, 

because I am sure Democrats did it as well, but I count at least 

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about 20 different Federal crimes which were already a crime in 

the State. 

So it seems to me that to come at this late date to discuss whether this is constitutional or not is a little too late. I am sure it is 

going to be tested in the courts, that is the American way, and we 

expect that it will be. 

This concept started in 1985—Barbara Canales started the introduction of this legislation, and it has evolved, I think, in a very important and significant way, and so I want all of us to realize that 

we are not doing anything really that new here. What we have 

done is refine and tailor in a very important way. 

Now, as the one person on the Committee and almost in the Congress that was here for the Voter Rights Act of 1965, this discussion is sort of amazing. We are always in a circular path here instead of trying to move forward. We come back to some of the 

seemingly lame excuses for why we should not go forward. 

The Chairman of this Subcommittee has indicated there are 

thousands of these acts still going on, and what we need to understand is that we are not taking jurisdiction away from States; we 

are only complementing them where it is necessary, and so it is in 

that spirit that I commend all of the witnesses for coming today to 

join in what I hope will be the final set of hearings on hate crime 

legislation in the Congress. 

Mr. NADLER. I thank the gentleman. 

I now recognize for 5 minutes the gentleman from North Carolina. 

Mr. COBLE. I thank you, Mr. Chairman. 

As our distinguished Chairman from Michigan said earlier, one 

of the reasons for being here is to engage in dialogue and to express some disagreements if, in fact, there are any. 

I appreciate the witnesses being here today. 

I would like to know—and perhaps I cannot get it today—if the 

number of reported hate crimes has decreased since 1995. I think 

that is the first year that a hate crimes report was published. Furthermore, several States have enacted hate crimes, and I would be 

interested in knowing also what sort of impact those State enacted 

crimes have had on the number of reported hate crimes. 

The problem I have with hate crimes is I fear that for the most 

part they are duplicative. A crime is committed. It seems to me, in 

most cases, that would be addressed or there would be a remedy 

on the books already. So we will talk about that at another time. 

David, we thank you for being here, and I am pleased that your 

attackers were awarded extended sentences. They obviously deserved it, from what you tell us. 

Mr. Lynch, you commented about the relocation of the FBI resources for terrorism, and I think there is some merit to be said 

for that. Do you have any concerns with the definitions proposed 

by H.R. 1592? And, if so, share them with us. 

Mr. LYNCH. It is not so much the particular nitty-gritty definitions, Mr. Chairman. I think, going back to your point about it 

being duplicative, these are federalizing crimes that are already on 

the State and local books, and once they are on the Federal books, 

then there will be pressure for Federal investigators and Federal 

prosecutors to start investigating those crimes, the stuff that is alVerDate 0ct 09 2002 14:53 May 20, 2008 Jkt 000000 PO 00000 Frm 00122 Fmt 6633 Sfmt 6601 H:\WORK\CRIME\041707\34756.000 HJUD1 PsN: 34756
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ready being prosecuted at the local level. And that is necessarily 

a diversion from what I think should be the FBI’s main focus, 

which is foreign threats, espionage, al-Qaeda and so forth. 

Mr. COBLE. I thank you, Mr. Lynch. 

Mr. Dacus, what effect, if any, would result from criminal investigations that focused on an accused’s political views, philosophy, 

prior statements, membership in organizations, once the motive for 

the crime is an element, A; and, B, what checks, if any, are there 

on Federal prosecutors seeking access to such information? 

Mr. DACUS. Well, to answer the first question, you basically have 

inquisitions of not only individual’s faith and beliefs, but with regards to those he knows, his friends, his clergy, his family, and not 

just immediately, but those in the past, going back as far as the 

prosecution felt necessary. That is, in essence, what we would have 

as a religious inquisition or political inquisition, and I think that 

is abhorrent to the whole concept of civil rights and true civil liberties. 

As far as what you said with regard to what checks are in place, 

I like to contend that I am an expert to be able to answer that, but 

I am not. I can just simply say that, presently, there would generally tremendous discretion to inquire is needed so as to justify 

proving up the case, but I think there would be others who are 

more equipped perhaps, our former attorney general from California perhaps might be even better than that to answer that part 

of the question. 

But without question, it would open the door for inquisitions, and 

that is not an if. It is just a matter of when and who is going to 

have to face it, like the pastor faced that I mentioned earlier. 

Mr. COBLE. Thank you, Mr. Dacus. 

Mr. Chairman, I see the red light is not yet illuminated, so I will 

yield back my time. 

Mr. NADLER. I appreciate that, despite the fact that the red light 

has not yet flashed. I thank the gentleman. 

With that, I will recognize for 5 minutes the gentlelady from 

California. 

Ms. WATERS. Thank you very much, Mr. Chairman. I would like 

to thank you for holding this hearing. 

I would like to thank Mr. David Ritcheson for coming in sharing 

with us what you went through and how your life was endangered 

by a hate crime, and while the State to prosecute, there are many 

States that still are insulated and are not prosecuting. 

But I know that I am not going to be the law-and-order person 

on the Committee today. I am considered a liberal, a progressive, 

and I have colleagues on this Committee who are law and order 

who look for ways to get tough on crime and who use every opportunity to try and make sure that we catch criminals who not only 

commit crimes, but heinous crimes. 

I am also sitting here and reflecting on the history of this country, and I am thinking about Emmett Till who was murdered, the 

young man that went down during the summer from Chicago to 

Mississippi, and who was badly beaten and killed. When his body 

came back, it was on the front pages of all of the Black newspapers 

and magazines in the country. There was never any prosecution in 

that case. 

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And I am thinking about the four little girls in Alabama, who 

were bombed at church and the fact that it was just last year that 

I think we finally brought someone to justice on that. 

But, of course, history is replete with cases of people of color that 

are harmed, killed, maimed, and still today in 2007. We hear about 

cases in small towns and cities and States where we do not think 

we are getting justice. 

So I know that all of our panelists here today would like to see 

everything possible done to apprehend and prosecute people who 

commit hate crimes, and I think that despite the fact that there 

has been some discussion about Federal jurisdiction, I think everybody at the table would say that you would support apprehending 

and bringing to the bar of justice anyone that would harm, kill or 

maim someone based on color or religion. 

Is that right? Do we have anybody that disagrees with that? 

Mr. Lynch? 

Mr. LYNCH. Restate that, please. 

Ms. WATERS. You talked a lot about Federal jurisdiction, and 

under 18 USC 245(c), only if a crime motivated by racial, ethnic or 

religious hatred is committed with the intent to interfere with the 

victim’s participation in one or more of these activities, you would 

agree with that. 

I mean, you do not really object to the Federal jurisdiction that 

is in existing law now for hate crimes? 

Mr. LYNCH. Well, I do think there are some problems with existing law. It depends upon——

Ms. WATERS. You think it goes too far? 

Mr. LYNCH. It depends upon what section of the Constitution this 

Federal statute rests upon. Is this based upon the Commerce 

Clause? Is there some type of connection between a Federal prosecution here and commerce? I think that that is problematic under 

the Supreme Court’s ruling in the Morrison case. 

Ms. WATERS. So it is your belief that there should be no Federal 

jurisdiction whatsoever, it costs too much money, it takes up too 

much time of the FBI, et cetera, et cetera? Is that what you believe? 

Mr. LYNCH. No. When you mentioned the Emmett Till case, there 

was actually a criminal prosecution involved in the murder of Emmett Till, but what you may recall, there was not a just result in 

that case. The State court proceedings were thoroughly corrupt in 

that murder prosecution, where you had basically a corrupt sheriff. 

I believe he testified on the behalf of the defendants in that case, 

and so the proceedings in the State court prosecution were thoroughly corrupt. I do think under section 5 of the 14th amendment, 

there is a basis for Federal prosecution against State officials acting under the color of law for violating the rights of individuals. So, 

in that respect, there is Federal jurisdiction. 

Ms. WATERS. But you talk about Federal prosecution for those 

acting under the color of law. I am talking about the perpetrators 

of hate crimes. You believe that there should be no Federal jurisdiction for perpetrators, that that should be left to the States. Is 

that right? 

Mr. LYNCH. Yes, I would have to——

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Ms. WATERS. You think we go too far if we do everything possible 

to apprehend and prosecute, and to make sure that these insulated 

jurisdictions who do not carry out their duty and carry out the law, 

we should not spend too much money and time on that kind of 

thing. It is unconstitutional. Is that what you believe? 

Mr. LYNCH. Well, you have mentioned insulated jurisdictions, 

and as I read the bill and the findings, there is no finding in this 

bill that State and local jurisdictions are being derelict in their 

duty and are failing to prosecute violent crime. 

Ms. WATERS. Unanimous consent for 30 more seconds. 

Mr. NADLER. Without objection. 

Ms. WATERS. Thank you very much. 

The findings may not be particularly identified as set forth in 

this legislation, but the Chairman of the Judiciary Committee, who 

just cited his tenure here in Congress, this African-American man, 

does not need to have anyone tell him that there are no findings 

that such things happen. He knows from experience. 

I yield back the balance of my time. 

Mr. NADLER. I thank the gentlelady. 

I now recognize for 5 minutes the distinguished gentleman from 

California. 

Mr. LUNGREN. Thank you very much, Mr. Chairman. 

I frankly have not made up my mind on this bill yet because of 

the number of different issues that are presented. On the, you 

know, basic question about hate crimes as to whether they are totally duplicative or whether they have a separate legal basis, I 

think the Supreme Court answered that when, on the one hand, 

they found unconstitutional one State hate crimes in the 1990’s 

and then later on upheld another. 

When I was attorney general of California, we declined to submit 

an amicus brief with respect to the one that was turned down because we did not think it was articulate enough in defining the difference between conduct and thought, and yet the second one, 

which paralleled the California statute, did pass constitutional 

muster. 

I think the question here is really what would be the effect of 

this law. I mean, that is what I am trying to figure out. 

I think it was 1991 in California. We had a total of about 3,500—

that is 3,500—murders in our State, yet we did not believe that 

most murders should be taken over by the Federal Government because of the numbers. 

I asked staff to get me the numbers of the hate crime incidents 

reported, and at least according to official documents, in 2005, 

there were 7,163 hate crimes reported, and in that same year, 

there were 1,017 violent incidents reported based on bias for sexual 

orientation, so approximately four incidents per million of population of violent incidents based on bias for sexual orientation 

versus the national crime rate of 492 incidents per 1 million, or 1.4 

million overall. 

I do not mean to slight any crime whatsoever, I want it to be 

very clear, or any victim of any such crime, but the question is: 

Where are we going to array our assets? If we pass this bill, do we 

really believe that the FBI will have the opportunity to spend significantly more of its time on investigating these hate crime cases? 

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If so, will that be to the exclusion of other things that we are attempting to get them to do? 

This Committee knows and the Crime Subcommittee knows that 

we are having a difficult time having the FBI transform itself into 

an elite counterterrorism operation right now. So it is really not a 

question for me as to whether there is an absolute constitutional 

predicate, although I do think there are some questions we have 

to answer. 

It is a question, Mr. Lawrence, of what do you think we will 

achieve by this. If this bill passes, is it your belief that a significant 

portion of the assets and personnel of the FBI will be directed to 

this and that that would be the substantial good that would be 

done by this bill? 

Mr. LAWRENCE. Absolutely not. I think the substantial good that 

would be done is that in certain instances, the FBI—and ultimately 

the U.S. attorney’s offices—would be available as a significant and 

very important backup to State law enforcement. 

But this is not just hypothesizing. The bill itself specifically sets 

out very strict requirements for Federal involvement, requires a 

certification by the attorney general or the attorney general’s designate, and that in itself is limited to specific circumstances in 

which the State asks to be involved, in which the State declines jurisdiction, or other very, very limited situations. 

One would expect that States that had strong bias crime laws, 

bias crime investigatory units and prosecutorial offices would use 

very few Federal resources on this and perhaps none. One would 

expect that States that do not would use more. Overall, one would 

expect not to have a major diverting of attention by the FBI. Quite 

the contrary, one would expect to have expertise by the FBI in very 

targeted areas in situations in which the States do not have the political, financial or expertise to bring to bear on these cases. 

Mr. LUNGREN. I thank the gentleman. 

Mr. NADLER. I will now recognize the distinguished Member from 

Georgia. 

Mr. JOHNSON. Thank you, Mr. Chairman. 

I would like to first say how much I appreciate the efforts of 

Chairman Conyers in doggedly pursuing this legislation throughout 

the years. 

This legislation removes unnecessary jurisdictional barriers to 

permit the U.S. Justice Department to prosecute violent acts motivated by bias and hate and complement existing Federal law by 

providing new authority for crimes where the victim is intentionally selected because of his or her gender, gender identity, sexual orientation or disability. 

Now Mr. Dacus is it—or Dacus? 

Mr. DACUS. Dacus. 

Mr. JOHNSON. Yes. It is interesting that you claim to decry attempts to silence diverse and differing viewpoints, including those 

who would condemn homosexuality or those who would condemn 

persons who practice Islam, but yet isn’t it a fact that you were recently involved in representing a number of parents in California 

in filing administrative complaints with their school districts to opt 

their children out of lesson plans that taught information about 

Islam? Yes or no? 

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Mr. DACUS. That taught information about Islam or had them 

engage in Islamic chants? 

Mr. JOHNSON. You tried to——

Mr. DACUS. Yes, engaged in Islamic chants, and, yes, we defended the rights of parents to opt their children out of engaging 

in Islamic chants. That is correct in that regard. 

Mr. JOHNSON. And, sir, is it your——

Mr. DACUS. Unabashedly. 

Mr. JOHNSON. Yes. And, sir, is it your opinion that the act under 

consideration here covers only violent crime, or does it cover hate 

speech or speech? 

Mr. DACUS. Well, the point I was trying to make is that——

Mr. JOHNSON. No, no. I mean, answer my question. Now does it 

cover speech? Does it——

Mr. DACUS. Oh, like the original law in California, it covers 

crime, and then California then extended that, as we know is expected to happen here. 

Mr. JOHNSON. Have you read H.R. 1592? 

Mr. DACUS. Yes, I have. 

Mr. JOHNSON. Okay. And I will turn your attention to section 

249. Do you have it in front of you? 

Mr. DACUS. Yes, I do. Wait a second. Let me find it. 

Mr. JOHNSON. Section 249. It is on page 10. Are you with me 

now? 

Mr. DACUS. Yes. 

Mr. JOHNSON. It prohibits certain hate crimes, and it talks about 

what a hate crime is, and in general, at Subsection A(1), it says 

‘‘offenses involving actual or perceived race, color, religion or national origin,’’ whoever, whether or not acting under color of law,’’ 

willfully causes bodily injury to any person, correct? 

Mr. DACUS. That is correct. 

Mr. JOHNSON. So it does not say anything about just simply 

someone who speaks out against something that you may disagree 

with. It talks about violent crime, and this law would give the feds 

jurisdiction to cover situations such as the one that Mr. Ritcheson, 

seated beside you had to undergo where he was pummeled almost 

to death because of his status of being a Latino. 

So this legislation would simply cover those individuals who were 

attacked because of their race, creed, national origin, sexual orientation. 

Mr. DACUS. That is right. It would not——

Mr. JOHNSON. It is not because of what they might say to someone. Do you understand that distinction? 

Mr. DACUS. Yes, I understand that distinction, but——

Mr. JOHNSON. Well, let me ask you this question them. Could a 

person be prosecuted under this act for expressing hostility to a religious or racial group if the person has not committed a violent 

crime? 

Mr. DACUS. Actually, potentially yes. Potentially, yes. And let me 

explain why. As was alluded to earlier initially by——

Mr. JOHNSON. We are talking about Federal law, not California 

law. 

Mr. DACUS. Okay. Yes. No, but here is the point. I thought you 

were asking me in the context of this bill. 

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Mr. JOHNSON. Well, I am talking about this bill here. That is 

why we are here. 

Mr. DACUS. Yes. In the context of this bill, pursuant to the application of the existing Federal law, the section 18 that was referenced by Mr. Gohmert, the fact is that if you have a scenario 

where you have, say, a pastor, a clergy or a rabbi who has engaged 

in——

Mr. JOHNSON. Well, if——

Mr. DACUS. Excuse me. I would like to answer the question. Do 

you want me to——

Mr. JOHNSON. You are eating up my time. 

Mr. DACUS. I do not intend to. 

Mr. JOHNSON. If you are going to talk about what they might say 

versus what someone may do to them physically, then you are pretty much wasting my time. 

Mr. DACUS. No, no. Such individuals, though, are potentially carried over to the same kind of prosecution, the same punishments 

as the original perpetrator pursuant to section 18. 

Mr. JOHNSON. Well, again, I was asking about the section that 

I just pointed you to that talks about violent injury. 

I want to ask Mr. Lynch before my time——

Mr. NADLER. The time of the gentleman has expired. 

Mr. JOHNSON. It has expired. All right. Thank you. 

Mr. NADLER. I now recognize the gentleman from Ohio for 5 minutes. 

Mr. CHABOT. Mr. Chairman, I apologize for not being present for 

this entire hearing because I had several other conflicts on my 

schedule, things to do at the same time, but it is obviously a very 

interesting issue that has been dealt with by this Congress over 

the years. 

We have had a number of people that have testified in the past, 

and rather than go through some of the same questions that have 

probably been asked, I would just address this to the panel in general. 

Could you explain why it ultimately matters, the motivation behind one person harming another? If the damage is done to that 

person and the person who has carried out that behavior is prosecuted as they should be—when one person harms another, they 

should be prosecuted, I believe, to the fullest extent of the laws—

why does it matter whether the person did it because they dislike 

the person’s religion or they dislike the person’s skin color or their 

sexual orientation or whatever? If they harm the person, they have 

broken the law, and they ought to be prosecuted for that harm if 

they are guilty. 

Aren’t we, to some degree, taking up the government’s limited resources in trying to determine the motivation when we could be 

looking at the facts, determining what harm was done and how to 

best catch the person And then prosecute them accordingly? You 

know, why do we need to get into whether the person hated the 

person or not? 

If they harm to the person, they should be prosecuted, I believe, 

to the fullest extent of the law. And I know there are philosophical 

disagreements on that. 

125

But I would be happy to just go down the line. Since I only have 

5 minutes, and I probably took about 2 minutes, if you could each 

one take about 30 seconds, that uses up all my time. 

And I want to be as fair or as possible to all the panel members. 

So we will start at this end, if that is okay. 

Mr. SHURTLEFF. Thank you, Representative. 

Yes, we for hundreds of years of criminal jurisprudence in this 

country have punished more severely those crimes which are most 

harmful to the community. 

When it comes to a hate crime, there is more than one victim. 

That is the key, is that when a crime is committed against a person because of who they are, the color of their skin, their race, 

their sexual orientation, the crime that we have to prove as prosecutors is against not just one individual, but the entire community. 

Therefore, the entire community is victimized, making it a more 

serious crime because there are more victims, therefore requiring 

a greater punishment. Our duties are to try as law enforcement officials to keep that individual who will do that—and we can prove 

by the facts—away from those law-abiding citizens for a greater period of time because of the crime they committed. 

Mr. LYNCH. I think you put your finger on it. This has been covered a little bit by Congressman Gohmert, and some of the witnesses have made this point, but I think you are right. This is the 

crux of the matter. 

I think the supposition behind hate crimes is that violence 

against individuals that is rooted in hatred based upon jealousy, 

greed or lust or whatever and some of these hatreds, these violent 

offenses should be treated less severely than violence that is rooted 

in a hatred based upon race, racism or religious hatred or something like that. I do not think there should be a hierarchy of hatred 

written into our criminal code. 

And you are right on your second point, in that unless you have 

the easy case where you have a guy expressing, you know, his racist thoughts, as he is beating up somebody—that is the easy case—

it is not going to involve more investigative or prosecutorial resources when you have witnesses hear that sort of thing. 

But if the perpetrator keeps his mouth shut, then investigative 

resources, if you want to prove a hate-crime motivation, resources 

then have to be devoted toward proving his motivation. And the 

question is whether that is a good basis for limited resources. Is 

it necessary or not? 

Mr. CHABOT. I note that the yellow light is already on. So, if you 

could keep to those 30 seconds, we are still going to go over it. 

I would ask unanimous consent for 1 additional minute, Mr. 

Chairman, for the others. 

Mr. NADLER. Without objection. 

Mr. CHABOT. Thank you. 

But try to stick to the 30 seconds. 

Mr. LAWRENCE. I will try not to use any of that extra minute, 

Mr. Chairman. 

It is a very important question, why focus on motivation, and the 

answer is pretty straightforward. You focus on motivation, as the 

126

criminal law often does, where motivation is directly related to 

harm. 

In the case of bias motivation, what both studies by legal academics and by my colleagues, like Professor McDevitt, have demonstrated, from a sociological point of view, psychological point of 

view, the harm is worse because of the motivation. I said a little 

bit earlier that Justice Holmes said even a dog knows the difference being tripped over and being kicked. The intentional crime 

and the crime because bias motivation is worse and more harmful. 

The other thing I will just say quickly is we are not breaking 

new ground here. The law looks at motivation in many situations. 

The Supreme Court has upheld the use of racial animus as a characteristic for capital punishment in Barkley against Florida. In all 

of the civil rights statutes, it is motivation that changes a legal act, 

firing somebody for no reason whatsoever, into an illegal act, firing 

them with racial animus. 

Mr. RITCHESON. I am not sure how to answer that question. 

Mr. DACUS. Okay. I would like to comment. 

First off, with regard to intent, intent is applied to the intent to 

actually commit the crime and do the crime, not the motivation. 

This is new territory with regards to this whole matter. 

I would also like to reference the whole concept that all victims—

all victims—all the Davids out there, irrespective of their color, 

their gender, whatever it may be—all Davids—to sort of paraphrase what was actually mentioned by the Honorable Jackson 

Lee—are to be treated equal and to be protected. 

And I think that that is really the fundamentals that we are 

talking about, is equal treatment for the victims and equal justice 

for the victims. That is a civil rights issue that is inherent in this 

whole question that I think we are overlooking. 

Mr. MCDEVITT. And just quickly, I think we have always punished crimes differently by the harm that the crime imposes on the 

victim. We have always done that. 

And what we know about these kinds of hate crimes is that the 

victims are incredibly vulnerable. I know, as a criminologist, victims can adapt and can figure out ways to make themselves less 

vulnerable in the future, but if you are attacked because you are 

Black or you are Asian or you are Latino or somebody thinks you 

might be gay, you cannot change that, and that will always be with 

you, and you are always vulnerable as a part of that. 

Mr. CHABOT. I thank the whole panel. 

Mr. NADLER. The Chair now recognizes for 5 minutes the 

gentlelady from Texas. 

Ms. JACKSON LEE. Again, let me use this time to offer my deepest sympathy to Chairman Scott in the loss in his community of 

which none of us know the full facts. 

Let me also make the point that I think the witnesses will agree 

that the real hero in the room is David, and we thank him for his 

appearance here and the young leadership that he has shown. 

I want to debunk some of the comments that were made, and the 

tone I use is not the usual tone that I have when I am provoked, 

but this is a very serious set of circumstances, and I am gratified 

that Chairman Conyers now has the real opportunity to move such 

a vitally important legislative initiative. 

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But I have sat in this room, I believe, now 12, going on 14 years, 

and I recall some earlier, less civil discussions of the hate crimes 

when it was represented by, I am sure, well-intentioned members 

that there was a possibility that a drunken husband could come 

home and abused his wife and be charged with a hate crime. Albeit 

how serious that statement may have been made and the intent behind the, I considered it offensive and, frankly, uncivil. 

I also consider comments, albeit as sincere as they might be, to 

suggest that the attention of the FBI would be distracted because 

we are in a war on terrorism when everyone knows that the basic 

collapse of 9/11 was the issue of a sharing of intelligence. Certainly, 

there may have been some questions of resources, but I frankly am 

too patriotic, too much in love with America to ever believe that we 

do not have the resources to fight crime, discrimination, viciousness 

and hateful acts. 

I am disappointed that witnesses here are today would offer such 

frivolous excuses for suggesting that there are some reasons we 

should not pass this legislation. 

I want to make it very clear that there are three elements to this 

and one that clearly helped solve a case, unfortunately, that also 

came from Texas, and that is the James Barrett case, when it was 

clear that the State-Federal collaboration clearly helped in the investigation of that case. This case now puts in law this collaboration between the Federal and State, and it also works to, if you 

will, clearly take away this federally protected activity bar. 

To the attorney general, which you just, comment, and as you do 

that, we had Deputy Attorney General Eric Holder who discussed 

another case in Texas where a jury acquitted three White supremacists of Federal criminal civil rights charges arising from 

unprovoked assaults upon African-Americans, including one incident in which 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 a racial animus, 

they had a hard time with the intent to deprive the victims of the 

right to participate in any federally protected activity. 

Can you elaborate on what kind of bar that really poses sometimes for local prosecution? 

Mr. SHURTLEFF. Well, indeed, we have great cooperative relationships with our Federal counterparts, and usually it is a situation 

like this where there are such heinous crimes committed, for example, Internet Crimes Against Children, where there are Federal 

laws and there are State laws, and every time we work together 

on a task force, we sit down to staff the case and look at which law, 

which set of facts, which investigation is ultimately going to keep 

that person away from harming our children, and I think that is 

what we want to be able to do in this situation. 

Ms. JACKSON LEE. If I might, when we manage to take away the 

bar of this federally protected activity language that confuses jurors, is that helpful to you? 

Mr. SHURTLEFF. Absolutely helpful to us. 

Ms. JACKSON LEE. And I thank you for that. 

I know my time is short. 

Let me also make it clear that as I understand this particular 

legislation, it does not stop someone from practicing their faith. 

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Professor Lawrence, my understanding is that this legislation 

would not prohibit the lawful expression of one’s deeply held religious beliefs, people who want to say things like ‘‘Homosexuality is 

sinful,’’ ‘‘Homosexuality is an abomination,’’ things that I would not 

want to say and do not want to hear, but, however, in their religious faith, the homosexuals did not inherit the kingdom. 

Is this bill interfering with those rights and privileges? 

Mr. LAWRENCE. It certainly does not interfere with those rights 

to express those views, so long as they are not complicitous in 

criminal activity. The expression of those views would not be 

criminalized by this legislation. 

Ms. JACKSON LEE. David, as I understand it, these were young 

people or near teenagers that might have been engaged in this violent crime that was against you. 

Mr. RITCHESON. Yes, ma’am. 

Ms. JACKSON LEE. And you have heard after the fact that there 

were not only carvings of the name. 

May I have an additional 30 seconds? 

We understand that there were epithets thrown at you. You 

know that we have a bill under your name, David’s Law, that 

would engage with grant money to reach out to young perpetrators 

of hate. Do you think that is valuable? 

Mr. RITCHESON. Yes, ma’am. 

Ms. JACKSON LEE. And would that be helpful in high schools and 

middle schools around the country? 

Mr. RITCHESON. Yes, ma’am. That would be. 

Ms. JACKSON LEE. And I hope that you will be willing to tell your 

story, now that you have come to tell us, around America and to 

help young people understand tolerance. Would you? 

Mr. RITCHESON. Yes, ma’am. Absolutely. 

Ms. JACKSON LEE. With that, I yield back my time. 

Mr. NADLER. I thank gentlelady. 

I now recognize the gentlelady from Wisconsin. 

Ms. BALDWIN. Thank you very much, Mr. Chairman. 

I hail from Wisconsin, and we have discussed already that Wisconsin has a hate crimes law that was tested in Wisconsin v. Mitchell, and as a resident of a State with a strong hate crimes law, I 

feel very strongly about the need to pass this at the Federal level. 

We hope that a hearing such as the can help us address misinformation that might exist about these legislative approaches, and 

typically we ask witnesses to respond to the testimony of other witnesses. 

Before I do that, I would like actually to ask about a response 

to one of the statements made by Members in the course of their 

opening statements. Because one of the statements described a 

slippery slope related to definitions in this legislation and underlying Federal legislation, specifically referencing the term ‘‘sexual 

orientation.’’

And I would ask, Dean Moran and Professor McDevitt, if this is 

a concern that you share, that there is some sort of slippery slope 

with regard to those definitions. 

Mr. LAWRENCE. No, I do not think there is. I think it is always 

possible to march out a parade of horribles of what might happen 

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in legislation, but I think we should be dealing with the reality of 

how law enforcement will proceed in the law like this. 

I would also add that particularly with the term ‘‘sexual orientation’’ this is not the first time we will see this in a Federal statute. 

Is that the first time we will see it in a Federal criminal civil rights 

statute? We have seen it in the Hate Crimes Reporting Act, and 

we have seen it in section 994 for enhancement to penalties of Federal crimes. 

So there is jurisprudence based on this, and I do not have that 

concern. 

Mr. MCDEVITT. And I agree as well. I think that we can look to 

the States as a laboratory about how this has been played out, and 

it has played out across the country where we have not seen any 

kind of egregious problems associated with prosecutions at the 

State level. So I think we can look at that and think when we add 

Federal resources to that, we will be even less likely to make mistakes. 

Ms. BALDWIN. When Mr. Lynch was testifying, he indicated or 

argued that we could potentially even decrease tolerance by encouraging the belief that law enforcement agencies would engage in favoritism because of Federal hate crimes law. 

I wonder, Professor McDevitt, if you could address this from the 

perspective that you announced earlier that really these measures 

cover all of us, and then I will turn to General Shurtleff about addressing this from the perspective of the top law enforcement officer for Utah. 

Mr. MCDEVITT. As I mentioned before, I think that the thing that 

makes these laws effective is that they are not special laws for social people, but they protect all of us. When you go and you train 

law enforcement or you speak to victims groups, you do any of that, 

you can say that whoever is attacked, because the motivation is biased, based on race, religion or other characteristics, they can be 

prosecuted under this statute, and I think that is hugely important 

and makes these statutes legitimate. 

Ms. BALDWIN. General Shurtleff, do you have any concerns that 

passage of a Federal hate crimes law would actually decrease tolerance by spreading a belief that law enforcement would engage in 

favoritism? 

Mr. SHURTLEFF. No, Representative, I have not; in fact, quite to 

the contrary. You know, our responsibility in law enforcement is to 

fill that number one purpose in establishing justice, and justice 

means equality, equal access, equal treatment under the law. Our 

job is to protect everybody regardless of race, religion, ethnicity, 

sexual orientation to really make real those God-given rights of life, 

liberty and the pursuit of happiness. 

There are those in our communities who do not believe that everybody is equal and will commit a crime against somebody because of who they are. This will give law enforcement the ability 

to protect everyone equally, because we are all members of our 

race, we all have a religion, we all have a sexual orientation, we 

all have a gender. It will give us the chance in law enforcement to 

protect everybody equally across the board. 

Ms. BALDWIN. There have been several references to the Hate 

Crime Statistics Act, and, of course, this bill, I believe, in section 

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8, amends that to add some new categories that we would charge 

our law enforcement with tracking. 

Professor McDevitt, could you review the protected classes that 

are currently covered by the Hate Crime Statistics Act? Let’s just 

start there. 

Mr. MCDEVITT. It is race, religion, ethnicity, and we are going to 

be adding gender and gender identity to the categories that are 

there, also presently do Sexual Orientation Act, and I did say when 

the 1990 act passed, it was really important that the FBI was the 

one that went around the country and trained local law enforcement, but it was a huge drain on their resources. They did it in 

regional meetings, and local law enforcement benefited from it. 

Ms. BALDWIN. How much time remains, Mr. Chairman? 

Mr. NADLER. Does the gentlelady request 1 additional minute? 

Ms. BALDWIN. I would appreciate 1 additional minute. 

Mr. NADLER. Without objection. 

Ms. BALDWIN. I cannot see the light from here. 

Mr. NADLER. Without objection. 

Ms. BALDWIN. I think that the collection of these statistics is incredibly important in making the case, obviously, for broader protections. Currently, gender identity is not one of the protected class 

is included in that. 

Are there other sources of information that you have access to or 

knowledge about or expertise on with regard to the prevalence of 

hate crimes, bias crimes with regard to gender identity? 

Mr. MCDEVITT. We have some measures that come from advocacy groups and will talk about individuals in those groups having 

been victimized in the area of 30 to 40 percent of individuals who 

are transgender or have gender identification issues, but those data 

are all tainted by the fact they are collected by advocacy groups. 

If the FBI were to collect them, then we would be in a much better 

place of having more reliable data. 

Ms. BALDWIN. Thank you. 

I yield back. 

Mr. NADLER. I thank the gentlelady. 

All questioning is concluded. 

I recognize the gentleman from Texas. 

Mr. GOHMERT. Thank you, Mr. Chairman. 

Our Ranking Member for this Subcommittee, Randy Forbes, is at 

Virginia Tech with the Virginia delegation, and I would ask unanimous consent to submit his written statement in as part of the 

record of this hearing. 

Mr. NADLER. Without objection. 

[The prepared statement of Mr. Forbes follows:]

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PREPARED STATEMENT OF THE HONORABLE J. RANDY FORBES, A REPRESENTATIVE IN

CONGRESS FROM THE STATE OF VIRGINIA, AND RANKING MEMBER, SUBCOMMITTEE

ON CRIME, TERRORISM, AND HOMELAND SECURITY


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Ms. JACKSON LEE. Mr. Chairman, I would like to ask unanimous 

consent to put into the record, I think, a very tributing statement 

on David. The title is ‘‘Moving On and Trying to Shed the Victim 

Label’’ dated April 17, 2007 in the Houston Chronicle. 

Mr. NADLER. Without objection. 

[The information referred to follows:]


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Mr. NADLER. Without objection, all Members will have 5 legislative days to submit to the Chair additional written questions for 

the witnesses, which we will forward and ask the witnesses to respond as promptly as they can so that your answers may be part 

of the record. 

Without objection, all Members will have 5 legislative days to 

submit any additional materials for inclusion in the record. 

I wish to thank the witnesses for their participation and their 

helping the House in this manner. 

I want to thank the Members. 

With that, the hearing is adjourned. 

[Whereupon, at 4:03 p.m., the Subcommittee was adjourned.] 

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PREPARED STATEMENT OF CHRISTOPHER E. ANDERS, LEGISLATIVE COUNSEL,

THE AMERICAN CIVIL LIBERTIES UNION

I. INTRODUCTION

The American Civil Liberties Union respectfully submits this statement to strongly urge the Subcommittee on Crime—and the full House of Representatives—to pass 

the Local Law Enforcement Hate Crimes Prevention Act. 

We are pleased that the sponsors of the legislation are once again including in 

the legislation an important provision that ensures that the bill will not chill constitutionally protected speech. Specifically, the bill will include a specific provision 

excluding evidence of speech that is unrelated to the crime. As a result, the ACLU 

is strongly urging support for this bill expanding the federal criminal civil rights 

statutes. 

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. At the same time, we also believe that these prosecutions should not include evidence of mere abstract beliefs or mere membership 

in an organization from becoming a basis for such prosecutions. The hate crimes bill 

accomplishes these goals by providing a stronger federal response to criminal civil 

rights violations, but tempering it with clear protections for free speech. 

II. THE PERSISTENT PROBLEM OF CRIMINAL CIVIL RIGHTS VIOLATIONS

The ACLU supports providing remedies against invidious discrimination and 

urges that discrimination by private persons 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, gender identity, 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. For 2003, based on reports from state and local law enforcement agencies, the FBI reported 7,489 incidents covered by the Act. 3,844 of those incidents were related to race, 1,343 to religion, 1,239 to sexual orientation, 1,026 to ethnicity or national origin, 33 to disability, and four to multiple categories. 

Existing federal law does not provide any separate offense for violent acts based 

on race, color, national origin, or religion, unless the defendant intended to interfere 

with the victim’s participation in certain enumerated activities. 18 U.S.C.A. 

§ 245(b)(2). During hearings 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, gender identity, or disability. 

The exclusion of sexual orientation, gender, gender identity, 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 African-American 

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 highly publicized accounts of the deaths of Matthew Shepard 

and Billy Jack Gaither, other reports of violence because of a person’s sexual orientation or gender identity 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 

159

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 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 blocks from the Capitol 

a few years ago, 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 man seen leaving a gay bar. Police officers referred to the practice 

as ‘‘fairy shaking.’’ The problem is widespread. In fact, the National Coalition of 

Anti-Violence Programs reports several hundred anti-gay incidents allegedly committed by state and local law enforcement officers annually. The federal government 

clearly has an enforcement role when state and local governments fail to provide 

equal protection of the laws. 

III. THE NEW BILL PROVIDES STRONG PROTECTION OF FREE SPEECH

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. 

Fourteen years ago, the ACLU submitted a brief to the Supreme Court urging the 

Court to uphold a Wisconsin hate crime sentencing 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 evidentiary provision in the House bill will help avoid that 

harm. 

The ACLU appreciates the sponsors’ inclusion of the evidentiary provision that 

prevents the hate crimes legislation from having any potentially chilling effect on 

constitutionally protected speech. The evidentiary subsection in the bill provides 

that:

Evidence of expression or association of the defendant may not be introduced as substantive evidence at trial, unless the evidence specifically relates to that offense. However, nothing in this section affects the 

rules of evidence governing the impeachment of a witness.

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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. 

This provision in the House bill almost exactly copies a paragraph in the Washington State hate crimes statute. Wash. Rev. Code § 9A.36.080(4). This Washington 

State language is not new; the paragraph was added to the Washington State statute as part of an amendment in 1993. The ACLU has conferred with litigators involved in hate crimes prevention in Washington State. They report no complaints 

that the provision inappropriately impedes prosecutions. 

On its face, the hate crimes bill punishes only the conduct of intentionally selecting another person for violence because of that person’s race, color, national origin, 

religion, gender, sexual orientation, gender identity, or disability. The prosecution 

must prove the conduct of intentional selection of the victim. Thus, the hate crimes 

bill, like the present principal criminal civil rights statute, 18 U.S.C. § 245 (‘‘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, in a 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 African-American gay victim. Bledsoe, 728 F.2d at 1098. 

Although the Justice Department has argued 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 evidentiary provision in the House hate crimes bill is important because, 

without it, we could see more evidence of unrelated speech admitted in hate crime 

prosecutions. Many of the arguments made in favor of hate crime legislation today 

are very different than the arguments made in favor of enacting section 245 37 

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. 

The problem today is that there is an increasing focus 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. Those arguments are very different from the arguments made in support 

of section 245 when it passed as an important part of the historic Civil Rights Act 

of 1968. 

The evidentiary provision removes the danger that—after years of debate focused 

on combating ‘‘hate’’—courts, litigants, and jurors applying a federal hate crime 

statute could be more likely to believe that speech-related evidence that is unrelated 

to the chain of events leading to a violent act is a proper basis for proving the intentional selection element of the offense. The provision will stop the temptation for 

prosecutors to focus 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 

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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). 

that the hate crimes bill should protect.1 The evidentiary provision in the House bill 

precludes all such evidence from being used to prove the crime, unless it specifically 

related to the violent offense. 

The evidentiary provision in the House hate crimes bill is not overly expansive. 

The provision will bar only evidence that had no specific relationship to the underlying violent offense. It will have no effect on the admissibility of evidence of speech 

that bears a specific relationship to the underlying crime—or evidence used to impeach a witness. Thus, the proposal will not bar all expressions or associations of 

the accused. It is a prophylactic provision that is precisely tailored to protect against 

the chilling of constitutionally protected free speech. 

IV. CONCLUSION

For the foregoing reasons, the ACLU strongly urges the House to pass this properly drafted legislation to expand federal jurisdiction to address the continuing problem of an inadequate state and local response to criminal civil rights violations, but 

without affecting any protected speech. Specifically, the ACLU urges the House to 

take prompt action in passing the Local Law Enforcement Hate Crimes Prevention 

Act of 2007. The ACLU appreciates this opportunity to present our concerns.

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ATTACHMENT


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PREPARED STATEMENT OF JOE SOLMONESE, PRESIDENT, HUMAN RIGHTS CAMPAIGN


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HATE CRIMES COALITION LETTERS OF SUPPORT


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