RS20678 -- Hate Crimes: Sketch of Selected Proposals and Congressional Authority Updated May 17, 2002 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. 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. 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."