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[Senate Report 115-325]
[From the U.S. Government Publishing Office]

                                                       Calendar No. 394
115th Congress     }                         {                Report
                                 SENATE
 2d Session        }                         {                115-325

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

 
       PROTECTING RELIGIOUSLY AFFILIATED INSTITUTIONS ACT OF 2018

                                _______
                                

                August 22, 2018.--Ordered to be printed

                                _______
                                

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

                              R E P O R T

                         [To accompany S. 994]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to which was referred the 
bill (S. 994) to amend title 18, United States Code, to provide 
for the protection of community centers with religious 
affiliation, and for other purposes, having considered the 
same, reports favorably thereon with an amendment in the nature 
of a substitute and recommends that the bill, as amended, do 
pass.

                                CONTENTS

                                                                   Page
  I. Background and Purpose of the Protecting Religiously Affiliated 
     Institutions Act of 2018.........................................1
 II. History of the Bill and Committee Consideration..................3
III. Section-by-Section Summary of the Bill...........................4
 IV. Congressional Budget Office Cost Estimate........................5
  V. Regulatory Impact Evaluation.....................................6
 VI. Conclusion.......................................................6
VII. Changes to Existing Law Made by the Bill, as Reported............6

  I. Background and Purpose of the Protecting Religiously Affiliated 
                        Institutions Act of 2018

                             A. BACKGROUND

    In the past two years, numerous threats have been made 
against religious institutions, including against the Jewish 
and Muslim communities. There were 161 bomb threats made to 
Jewish Community Centers in 2017--an increase of 127 percent 
from the previous year, and the FBI reported that hate crimes 
against Muslims rose 67 percent from 2014 to 2015, the second-
most reported amount of incidents ever.
    The House introduced H.R. 1730 on March 23, 2017. On 
December 11, 2017, the bill was reported by the Committee on 
the Judiciary and passed in the House by a roll call vote of 
402-2. The bill was referred to the Senate Committee on the 
Judiciary the next day.

                               B. PURPOSE

    The amendments of Title 18 in S. 994 are intended to 
protect community centers with religious affiliation and those 
spaces leased by religious institutions and increases the 
criminal penalty where there is damage to religious real 
property.

1. Revision of Section 247

    The amendments to Section 247 have three aims. First, to 
explicity address the threats made against religious real 
property, section 247(a)(2), as it is codified, punishes 
whomever ``intentionally obstructs, by force or threat of 
force'' any person's free exercise of religious beliefs. The 
amendment to section 247(a)(2) would explicity include threats 
that intentionally obstruct persons from free exercising of 
their religious beliefs by means of threats against religious 
real property.
    Second, the amendment to section 247(a)(4) imposes a 
heightened criminal penalty on a perpetrator regardless of 
whether bodily injury or death occurs if the damage or 
destruction exceeds $5,000. As codified, section 247(d)(1)-(3) 
address punishments for death and bodily injury (with a more 
severe penalty if the bodily injury occurs by means of fire or 
an explosive). Section 247(d)(4) imposes a maximum prison 
sentence of one year. The amendment to Section 247(a)(4) would 
increase the maximum prison sentence to three years if the 
damage or destruction exceeds $5,000.
    Third, the amendment to section 247(f) includes real 
property that is ``owned or leased by a non-profit, religiously 
affiliated organization.'' As codified, section 247(f) does not 
include religious community centers, which received the brunt 
of threats that spurred this legislation. This modest expansion 
would include facilities like Jewish Community Centers, and 
others.

2. The bill does not expand the death penalty

    The changes adopted in the manager's substitute amendment 
are intended to clarify that a ``threat of force'' under 
subparagraph (a)(2) includes ``threats of force'' made against 
religious real property. The authors of the substitute 
amendment do not intend, and the substitute amendment should 
not be read, to expand the permissible application of the death 
penalty provision found in subsection (d)(1).
    In any event, even if the manager's substitute amendment 
were interpreted to expand the permissible application of the 
death penalty to threats made against religious real property, 
such a penalty would be extremely unlikely. This is because the 
Federal Death Penalty Act requires the government to prove 
beyond a reasonable doubt that a defendant ``intentionally'' 
killed a victim or committed offenses while contemplating that 
the life of a person be taken. See 18 U.S.C. Sec. 3591 
(providing for when sentence of death may be imposed).
    More specifically, in federal death penalty proceedings, 18 
U.S.C. Sec. Sec. 3591 and 3593 require that the government 
prove beyond a reasonable doubt that the defendant:
           intentionally killed the victim;
           intentionally inflicted serious bodily 
        injury that resulted in the death of the victim;
           intentionally participated in an act, 
        contemplating that the life of a person would be taken 
        or intending that lethal force would be used in 
        connection with a person, other than one of the 
        participants in the offense, and the victim died as a 
        direct result of the act; or
           intentionally and specifically engaged in an 
        act of violence, knowing that the act created a grave 
        risk of death to a person, other than one of the 
        participants in the offense, such that participation in 
        the act constituted a reckless disregard for human life 
        and the victim died as a direct result of the act.
    These additional elements mean that a threat against 
religious real property, as a standalone offense, would be 
extremely unlikely to result in a sentence of death.

3. Threats of force

    While the legislation does not specifically define the 
term, ``threats of force,'' the substitute amendment should not 
be read to encroach on protected speech. Courts have long 
distinguished ``true threats'' from protected speech by asking 
whether those who hear or read the threat reasonably consider 
it to be an ``actual threat.'' See, e.g., R.A.V. v. City of St. 
Paul, Minn., 505 U.S. 377, 388 (1992) (explaining that 
prohibiting true threats ``protect[s] individuals from the fear 
of violence, from the disruption that fear engenders, and from 
the possibility that threatened violence will occur''); United 
States v. Wheeler, 776 F.3d 736, 743 (10th Cir. 2015) (``[T]rue 
threats [are] statements where the speaker means to communicate 
a serious expression of an intent to commit an act of unlawful 
violence to a particular individual.'') (internal quotation 
marks omitted).

          II. History of the Bill and Committee Consideration

                      A. INTRODUCTION OF THE BILL

    On May 1, 2017, Senator Hatch introduced S. 994, the 
Protecting Religiously Affiliated Institutions Act. Senator 
Feinstein was an original cosponsor. The bill was referred to 
the Committee on the Judiciary.
    On May 2, 2017, the Committee on the Judiciary held a 
hearing entitled, ``Responses to the Increase in Religious Hate 
Crimes.'' Testimony was received from Eric Treene, Special 
Counsel for Religious Discrimination, Civil Rights Division, 
U.S. Department of Justice; Jonathan A. Greenblatt, CEO and 
National Director of the Anti-Defamation Legaue; Dr. Prabhjot 
Singh, Chair of the Department of Health System Design & Global 
Health and Director of the Arnhold Institute for Global Health 
at the Mount Sinai Health System; Vanita Gupta, President & CEO 
of the Leadership Conference on Civil and Human Rights; and 
Chief Will D. Johnson, Chair of the International Association 
of Chiefs of Police, Human and Civil Rights Committee.
    Mr. Treene noted that hate crimes, which make up 4 percent 
of the violent crimes in the United States, are meant to 
intimdate and terrorize communities. Religion-based hate crimes 
are the second-largest category, after race-based; the FBI 
Uniform Crime Report showed a 67 and 9 percent increase in 
anti-Muslim and anti-Jewish hate crimes, respectively. In his 
written testimony, Mr. Treene explained that the Church Arson 
Prevention Act (CAPA) has been used to prosecute crimes that 
interfere with religious exercise, including against Dylann 
Roof, for the killing of nine African Americans at the African 
Methodist Episcopal Church in Charleston, SC, and Robert 
Doggart, who ``solicited another man to help him launch an 
attack'' in Islamberg, NY, which was founded by African-
American Muslims.
    Mr. Greenblatt noted that the FBI's crime data invariably 
underreported the instances of hate crimes and that it is 
``actually shocking'' that 87 major U.S. population centers 
told the FBI that there were no hate crimes, or did not provide 
data on hate crimes at all. Mr. Greenblatt recommended 
strengthening federal hate crimes bills, including the 
criminalization of threats under CAPA. In his written 
testimony, Mr. Greenblatt explained that crimnalizing violent 
threats to religiously-affiliated organizations is important 
because ``the First Amendment's guarantee of religious freedom 
means little to those not safe in their house of worship.''
    Ms. Gupta in her written testimony recommended passing 
legislation that filled the gaps in current law, specifically 
CAPA, to include not only attempts, but ``threats to religious 
property (emphasis original). Ms. Gupta also recommended 
passing the NO HATE Act to provide funding for reporting hate 
crimes.

                       B. COMMITTEE CONSIDERATION

    The Committee considered S. 994 on April 19, 2018. Senator 
Hatch offered a manager's substitute amendment which the 
Committee adopted without objection. The Committee then voted 
to report the Protecting Religiously Affiliated Institutions 
Act of 210, with an amendment, favorably to the Senate, by 
voice vote.

              III. Section-by-Section Summary of the Bill

Section 1. Short title

    This section provides that the legislation may be cited as 
the ``Protecting Religiously Affiliated Institutions Act of 
2018.''

Section 2. Protection of community centers with religious affiliation

    This section makes adjustments to U.S. criminal law in 
order to broaden the prohibited conduct towards religiously 
affiliated institutions.
    The section amends Section 247 of Title 18, United States 
Code, to broaden the scope of prohibited conduct by 
specifically addressing threats made against religious real 
property, including that which is owned or leased by a 
nonprofit, religiously affiliated organization.
    The section inserts new language in section 247(a)(2) to 
include that the threat of force means that it is ``including 
by threat of force against religious real property.''
    The section inserts in the matter precending paragraph (1) 
of subsection (d) that subsection (d) contains the punishment 
provisions for both (a) and (c), and deletes the ``and'' at the 
end of the paragraph 247(d)(3).
    New language in section 247(d)(4) specifies that if the the 
damage or destruction of the property exceeds $5,000, the 
imprisonment will be up to three years.
    The section redesignates 247(d)(4) as 247(d)(5).
    The section inserts new language in 247(f) to include real 
property owned or leased by a nonprofit, religiously affiliated 
organization.

             IV. Congressional Budget Office Cost Estimate

    The Committee sets forth, with respect to the bill, S. 994, 
the following estimate and comparison prepared by the Director 
of the Congressional Budget Office under section 402 of the 
Congressional Budget Act of 1974:

                                                    April 25, 2018.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for S. 994, the Protecting 
Religiously Affiliated Institutions Act of 2018.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz.
            Sincerely,
                                                        Keith Hall.
    Enclosure.

S. 994--Protecting Religiously Affiliated Institutions Act of 2018

    S. 994 would broaden the coverage of current laws against 
damaging religious property; that change would allow the 
government to pursue some cases that it otherwise may not be 
able to prosecute. CBO expects that the bill would apply to a 
relatively small number of offenders, however, so any increase 
in costs for law enforcement, court proceedings, or prison 
operations would not be significant. Any such spending would be 
subject to the availability of appropriated funds.
    Because people prosecuted and convicted under S. 994 could 
be subject to criminal fines, the federal government might 
collect additional fines under the bill. Criminal fines are 
recorded as revenues, deposited in the Crime Victims Fund, and 
later spent without further appropriation action. CBO expects 
that any additional revenues and associated direct spending 
would not be significant because the bill would probably affect 
a small number of cases.
    Pay-as-you-go procedures apply because enacting S. 994 
would affect direct spending and revenues. However, CBO 
estimates that any such effects would be insignificant on an 
annual basis.
    CBO estimates that enacting S. 994 would not increase net 
direct spending or on-budget deficits in any of the four 
consecutive 10-year periods beginning in 2029.
    S. 994 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act.
    On November 20, 2017, CBO transmitted a cost estimate for 
H.R. 1730, the Protecting Religiously Affiliated Institutions 
Act of 2017, as ordered reported by the House Committee on the 
Judiciary on November 2, 2017. CBO's estimates of the budgetary 
effects of the two pieces of legislation are identical.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was reviewed by H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    V. Regulatory Impact Evaluation

    In compliance with rule XXVI of the Standing Rules of the 
Senate, the Committee finds that no significant regulatory 
impact will result from the enactment of S. 994.

                             VI. Conclusion

    The Protecting Religiously Affiliated Institutions Act of 
2018, S. 994, will further protect religiously affiliated 
institutions by broadening the scope of prohibited conduct with 
regards to threats against religious real property.

       VII. Changes to Existing Law Made by the Bill, as Reported

    In compliance with paragraph 12 of rule XXVI of the 
Standing Rules of the Senate, changes in existing law made by 
S. 994, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italic, and existing law in which no 
change is proposed is shown in roman):

                           UNITED STATES CODE

TITLE 18--CRIMES

           *       *       *       *       *       *       *

CHAPTER 13--CIVIL RIGHTS

           *       *       *       *       *       *       *

Sec. 247. Damage to religious property; obstruction of persons in the 
                    free exercise of religious beliefs

    (a) Whoever, in any of the circumstances referred to in 
subsection (b) of this section--
          (1) intentionally defaces, damages, or destroys any 
        religious real property, because of the religious 
        character of that property, or attempts to do so; or
          (2) intentionally obstructs, by force or threat of 
        force, including by threat of force against religious 
        real property, any person in the enjoyment of that 
        person's free exercise of religious beliefs, or 
        attempts to do so;
shall be punished as provided in subsection (d).
    (b) The circumstances referred to in subsection (a) are 
that the offense is in or affects interstate or foreign 
commerce.
    (c) Whoever intentionally defaces, damages, or destroys any 
religious real property because of the race, color, or ethnic 
characteristics of any individual associated with that 
religious property, or attempts to do so, shall be punished as 
provided in subsection (d).
    (d) The punishment for a violation of subsection (a) or (c) 
of this section shall be--
          (1) if death results from acts committed in violation 
        of this section or if such acts include kidnapping or 
        an attempt to kidnap, aggravated sexual abuse or an 
        attempt to commit aggravated sexual abuse, or an 
        attempt to kill, a fine in accordance with this title 
        and imprisonment for any term of years or for life, or 
        both, or may be sentenced to death;
          (2) if bodily injury results to any person, including 
        any public safety officer performing duties as a direct 
        or proximate result of conduct prohibited by this 
        section, and the violation is by means of fire or an 
        explosive, a fine under this title or imprisonment for 
        not more that 40 years, or both;
          (3) if bodily injury to any person, including any 
        public safety officer performing duties as a direct or 
        proximate result of conduct prohibited by this section, 
        results from the acts committed in violation of this 
        section or if such acts include the use, attempted use, 
        or threatened use of a dangerous weapon, explosives, or 
        fire, a fine in accordance with this title and 
        imprisonment for not more than 20 years, or both; [and]
          (4) if damage to or destruction of property results 
        from the acts committed in violation of this section, 
        which damage to or destruction of such property is in 
        an amount that exceeds $5,000, a fine in accordance 
        with this title, imprisonment for not more than 3 
        years, or both; and
        [(4)] (5) in any other case, a fine in accordance with 
        this title and imprisonment for not more than one year, 
        or both.
    (e) No prosecution of any offense described in this section 
shall be undertaken by the United States except upon the 
certification in writing of the Attorney General or his 
designee that in his judgment a prosecution by the United 
States is in the public interest and necessary to secure 
substantial justice.
    (f) As used in this section, the term `religious real 
property' means any church, synagogue, mosque, religious 
cemetery, or other religious real property, including fixtures 
or religious objects contained within a place of religious 
worship, or real property owned or leased by a nonprofit, 
religiously affiliated organization.
    (g) No person shall be prosecuted, tried, or punished for 
any noncapital offense under this section unless the indictment 
is found or the information is instituted not later than 7 
years after the date on which the offense was committed.

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                                  [all]
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