Hate Crimes: Sketch of Selected Proposals and Congressional Authority
Released: 2002-05-17T00:00:00

RS20678 -- Hate Crimes: Sketch of Selected Proposals and Congressional Authority

Updated May 17, 2002

Introduction

S. 625 , the Local Law Enforcement Enhancement Act of 2001, introduced by Senator Kennedy on March 27, 2001, has 50 cosponsors; its companionin the House, H.R. 1343 , the local Law Enforcement Hate Crimes Prevention Act of 2001, introduced byRepresentative Conyers, has over 180cosponsors. They are virtually identical to the Kennedy hate crime amendment (Amend. 3473) to the NationalDefense Authorization Act for Fiscal Year 2001( H.R. 4205 ) which passed the Senate during the 106th Congress but was dropped from the billprior to final enactment. Representative Jackson-Leehas offered an alternative proposal ( H.R. 74 , the Hate Crimes Prevention Act of 2001), which closelyresembles her offering in the 106th Congress( H.R. 77 ). A second alternative from the 106th Congress, Senator Hatch's S. 1406 , has,as yet, not been proposed in this Congress.

Overview of Proposals

New Crimes : S. 625 / H.R. 1343 creates two federal crimes. Both outlaw willfully causing physical injuries; using fire, firearms, orbombs; or attempting to do so -- motivated by certain victim characteristics (whether real or perceived). Offendersare subject to imprisonment for not more than10 years, or for any term of years or life if the crime involves attempted murder, kidnapping, attempted kidnapping,rape or attempted rape. The two offensesdiffer in that the first applies to crimes motivated by the victim's race, color, religion, or national origin and containsno other explicit federal jurisdictionalelement. The second applies to crimes motivated by the victim's gender, sexual orientation, disability, race, color,religion, or national origin and contains a seriesof alternative jurisdictional elements of a commerce clause stripe. Federal prosecution of either offense wouldrequire certification of a senior Department ofJustice official that state or local officials are unable or unwilling to prosecute, favor federal prosecution, or haveprosecuted to a result that leaves federal interestin eradicating bias-motivated violence unvindicated. H.R. 74 would establish the same two offenses, but hasno certification requirement.

Hate Statistics : The companion bills and H.R. 74 add gender to the list of predicate characteristics for hate crime statistical collection purposes,section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994.

Assistance to Local Law Enforcement : Unlike H.R. 74 , the companion bills each call for the Justice Department to assist state and tribal lawenforcement efforts to investigate and prosecute violent, felonious hate crimes, motivated by animosity towardsthose of the victim's race, color, religion, nationalorigin, gender, sexual orientation, disability or other characteristic found in the state's or tribe's hate crime law. Theyinsist that priority be given to cases infiscally strapped rural jurisdictions and to cases involving multistate offenders.

Grants : Each of the proposals features a grant program to help the states combat hate crimes committed by juveniles, authorizing such appropriations as arenecessary. S. 625 / H.R. 1343 calls for an additional extraordinary grant program available to the statesand tribes to addressinvestigative and prosecutorial needs that cannot otherwise be met. The bills authorize appropriations of $5 millionfor each of fiscal years 2002 and 2003, but noindividual grant may not exceed $100,000 per year.

Sentencing Guidelines : Each proposal instructs the Sentencing Commission to study and make any appropriate adjustments in the federal sentencing guidelinesconcerning adult recruitment of juveniles to commit hate crimes, consistent with the other federal sentencingguidelines and being sure to avoid duplication.

Legislative Powers of Congress

Commerce Clause : Congress enjoys only those legislative powers that flow from the Constitution. U.S.Const. Amends. IX, X. The commerce clause, section 5of the Fourteenth Amendment and section 2 of the Thirteenth Amendment and Fifteenth Amendment, are the grantsof power most often mentioned whendiscussing Congress' authority to proscribe hate crimes, and to enact other forms of civil rights legislation.

Under the commerce clause, Congress is empowered "to regulate commerce with foreign nations, and among the several States, and with the Indian Tribes."U.S.Const. Art.I, �8, cl.3. The Supreme Court in Lopez and Morrison identified the threeways in which Congress may exercise its prerogatives under the clause:"First, Congress may regulate the use of the channels of interstate commerce. Second, Congress is empowered toregulate and protect the instrumentalities ofinterstate commerce, or persons or things in interstate commerce, even though the threat may come only fromintrastate activities. Finally, Congress' commerceauthority includes the power to regulate those activities having a substantial relation to interstate commerce, . . . i.e.,those activities that substantially affectinterstate commerce.").

This last category, the "affects interstate commerce" category, can sometimes be the most difficult to define for it may embrace what appears to be purelyintrastate activity. Morrison cited with approval the signposts of this aspect of the commerce powerthat Lopez sought in vain when examining the Gun-FreeSchools Act (18 U.S.C. 922(q)(1)(A)). First, the statute had "nothing to do with commerce or any sort of economicenterprise, however broadly one might definethose terms." Second, "the statute contained no express jurisdictional element which might limit its reach to adiscrete set of firearm possessions that additionallyhave an explicit connection with or effect on interstate commerce." Third, neither the statute "nor its legislativehistory contains express congressional findingsregarding the effects upon interstate commerce of gun possession in a school zone." Finally, the link between gunpossession in a school zone and commerceinterest urged by the government (the cost of violent crime and damage to national productivity caused by violentcrime) was too attenuated without more tosupport a claim to commerce clause authority.

In this last regard, Morrison observed, "[w]e accordingly reject the argument that Congress may regulate noneconomic, violent criminal conduct based solely onthat conduct's aggregate effect on interstate commerce. The Constitution requires a distinction between what is trulynational and what is truly local. . . Theregulation and punishment of intrastate violence that is not directed at the instrumentalities, channels, or goodsinvolved in interstate commerce has always beenthe province of the States."

The hate crime proposals present two, somewhat different, claims to commerce clause power. First, they create a federal crime for which an aspect of interstatecommerce is an element, i.e., in the case of H.R. 74 : either that (a) "in connection with theoffense, the defendant or the victim travels in interstatecommerce or foreign commerce, uses a facility or instrumentality of interstate or foreign commerce, or engages inany activity affecting interstate or foreigncommerce; or (b) the offense is in or affects interstate or foreign commerce;" and in the case of S. 625 / H.R. 1343 : either that (1) theoffense "occurs during the course of, or as a result of, the travel of the defendant or the victim " either (a) "acrossa State line or national border" or (b) "using achannel, facility, or instrumentality of interstate or foreign commerce;" or (2) the defendant uses a channel, facility,or instrumentality of interstate or foreigncommerce" in the commission of the offense; or (3) in connection with the offense "the defendant employs afirearm, explosive or incendiary device, or otherweapon that has traveled in interstate or foreign commerce; or (4) the offense either (a) interferes with commercialor other economic activity in which the victimis engaged at the time of the conduct; or (b) otherwise affects interstate or foreign commerce."

Then they create a second federal crime whose claim to a commerce clause nexus must be more inferential, tied to the findings and the general nature andconsequences of hate crimes.

Morrison suggests that the findings and general nature of the offenses involved are likely to be insufficient to support an assertion that the commerce clauseempowers Congress to enact the provisions. Morrison rejected virtually the same argument with respectto a statute creating a civil remedy for the victims ofgender-motivated violence. Its success here would seem to depend on convincing the Court that race-motivated,or color-motivated, or religion-motivated, ornational origin-motivated violence are somehow more commercially influential than gender-motivated violence.

Brighter seem the prospects for a judicial conclusion that the offenses that come with commerce-explicit elements come within Congress' commerce clausepowers. They have the distinct advantage of precluding conviction unless the prosecution can convince the courtsof the statutory nexus between the defendant'sconduct and the commerce impacting element of the offense. Moreover, several of the elements involve preventingthe channels of commerce from becoming theavenues of destructive misconduct or protecting the flow of commerce from destructive ingredients -- the mark ofcircumstances that indisputably fall withinCongress' authority under the commerce clause.

Section 5 of the Fourteenth Amendment : Where the proposals seem beyond Congress' reach under the commerce clause they may be within the scope of otherlegislative powers such as the legislative clauses of the Thirteenth, Fourteenth, and Fifteenth Amendments. Morrison addresses the breadth of Congress'legislative power under section 5 of the Fourteenth Amendment. The Amendment guarantees certain civil rightsoften by forbidding state or federal interference. Under section 5 the Congress is vested with "power to enforce, by appropriate legislation, the [Amendment's]provisions." Morrison pointed out that UnitedStates v. Harris held that section 5 did not vest Congress with the power to enact a statute "directedexclusively against the action of private persons, withoutreference to the laws of the state, or their administration by her officers." And in Civil Rights Cases ,"we held that the public accommodation provisions of theCivil Rights Act of 1875, which applied to purely private conduct, were beyond the scope of the �5 enforcementpower. . . . The force of the doctrine of staredecisis behind these decisions stems not only from the length of time they have been on the books, but also fromthe insight attributable to the Members of theCourt at that time . . . [who] obviously had intimate knowledge and familiarity with the events surrounding theadoption of the Fourteenth Amendment."

The statute in Morrison created a cause of action against private individuals who perpetrated gender-motivated violence enacted in the face of evidence that thestates often failed to adequately investigate and prosecute such crimes. The authority under section 5, however,extends only to state action including theenactment of a "remedy corrective in its character, adapted to counteract and redress the operation of such prohibitedstate laws or proceedings of state officers." The Morrison statute rested on the wrong side of the divide, for its remedy fell not upon wayward stateofficials, but upon private individuals. The hate crimeproposals seem perilously comparable at best. They address private misconduct, not the deficiencies of state action.

Section 2 of the Thirteen Amendment : The companion bills and H.R. 74 each stake a claim to the legislative authority in section 2 of the ThirteenAmendment within their findings. The Civil Rights Cases , considered so instructive with respect toCongressional powers under the Fourteenth Amendment, alsoafforded the Court its first opportunity to construe section 2 of the Thirteenth Amendment. Unlike, the Fourteenth,it speaks not of state action, but declares"Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been dulyconvicted, shall exist within the United States,or any place subject to their jurisdiction." U.S.Const. Amend. XIII, �1. It finishes with the stipulation that "Congressshall have power to enforce this article byappropriate legislation." U.S.Const. Amend. XIII, �2.

The Civil Rights Cases observed that section 2 "clothes Congress with power to pass all laws necessary and proper for abolishing all badges and incidents ofslavery in the United States." This power it concluded, however, reached "those fundamental rights whichappertain to the essence of citizenship" and but not the"social rights" (access lodging, transportation, and entertainment) that Congress had by statute endeavored to protectfrom racial discrimination.

The Court said little of section 2 for nearly a century thereafter until Jones v. Alfred H. Mayer Co. , which found that Congress might ban racial discriminationfrom real estate transactions under the section. Almost in passing, Jones dismissed without repudiatingthe social rights distinction: "Whatever the presentvalidity of the position taken by the majority on that issue--a question rendered largely academic by Title II of theCivil Rights Act of 1964, 78 Stat. 243 (seeHeart of Atlanta Motel v. United States , 379 U.S. 241; Katzenbach v. McClung , 379U.S. 294 [confirming the Title's validity as an exercise ofcommerce clause power])--we note that the entire Court agreed upon at least one proposition: The ThirteenAmendment authorizes Congress not only to outlawall forms of slavery and involuntary servitude but also to eradicate the last vestiges and incidents of a society halfslave and half free, by securing to all citizens, ofevery race and color, the same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit,purchase, lease, sell and convey property, as isenjoyed by white citizens."

Three years later in Griffin the Court confirmed that 42 U.S.C. 1985(3)(relating to conspiracies in deprivation of the rights of citizenship) was within the scope ofsection 2 authority. Griffin opined that "Not only may Congress impose such liability, but the varietiesof private conduct that it may make criminally punishableor civilly remediable extend far beyond the actual imposition of slavery or involuntary servitude. By the ThirteenthAmendment, we commit ourselves as a Nationto the proposition that the former slaves and their descendants should be forever free. To keep that promise,Congress has the power under the ThirteenthAmendment rationally to determine what are the badges and incidents of slavery, and the authority to translate thatdetermination into effective legislation. Wecan only conclude that Congress as wholly within its powers under �2 of the Thirteen Amendment in creating astatutory cause of action for Negro citizens whohave been the victims of conspiratorial, racially discriminatory private action aimed at depriving them of the basisrights that the law secures to all free men." 403U.S. at 105.

Section 2 envisions legislation for the benefit of those who bore the burdens slavery and their descendants (race, color), but does it contemplate a wider range ofbeneficiaries ( e.g. , religion, national origin). The hate crime proposals would have encloaked groupssubject to classification by "race, color, religion, or nationalorigin." In construing the civil rights statutes enacted contemporaneously with the Thirteenth, Fourteenth andFifteenth Amendment, the Supreme Court held thatArabs and Jews would have been considered distinct "races" at the time the statutes were passed and theAmendments drafted, debated and ratified. Whether thiswould be considered sufficient to embrace all religious discrimination is another question. Would Roman Catholicsor Methodists, for example, have beenconsidered distinct "races" even in the Nineteenth Century?

Of course, even this expansion of beneficiaries does not ensure that the Court would consider violence a badge or incident of slavery. Although commenting onits irrelevancy in light of Congress' use of commerce clause, even Jones did not go so far as to rejectthe fundamental versus the social rights distinction of the Civil Rights Cases . Perhaps more to the point, the anxiety of Morrison and Lopez lest an overly generous commerce clause construction swallow all state criminaljurisdiction over violence might argue against the prospect of the Court embracing violence as a badge or incidentof slavery for purposes of Congress' legislativeauthority under section 2 of the Thirteenth Amendment.