Mr. President, I ask unanimous consent that the order for the quorum call be rescinded. The PRESIDING OFFICDER (Mr. Warner). Without objection, it is so ordered. Mr. President, I am very concerned…
Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.
The PRESIDING OFFICDER (Mr. Warner). Without objection, it is so ordered.
Mr. President, I am very concerned about legislation that has been added to the Defense bill, the
so-called Hate Crimes Act. Certainly, none of us has any sympathy whatsoever for people who commit crimes of any kind, particularly those who would attack somebody because of their race, ethnicity, sexual orientation, or any other reason. I wish to take a few moments to explain why this is important and why this legislation is not good and it ought not to be passed. Some of my remarks may appear to be technical, but they are very important, in my view, as a former Federal prosecutor for almost 15 years.
I don't think it was ever appropriate that we bring this legislation to the floor and stick it on this Defense bill without having a markup in the committee without the ability to discuss it and improve it.
For years legal commentators and jurists have expressed concern at the tendency of Congress, for the political cause of the moment, to persist in adding more and more offenses to the U.S. Criminal Code that were never Federal U.S. crimes before. This is being done at the same time that crime rates over the past decade or so have dropped and State and local police forces have dramatically improved their skills and technology. There are really fine police forces all over the country today. An extraordinary number of police officers have college degrees and many advanced degrees.
I think two questions should be asked initially. First, is this a crime that uniquely affects a Federal interest, and can it be addressed by an effective and enforceable statute? Second, have local police and sheriffs' offices failed to protect and prosecute this vital interest?
Most people do not understand that a majority of crimes--theft, rape, robbery, and assault--are not Federal crimes and are not subject to investigation by the FBI or any other Federal agency. They could not do so if they wanted to because they have no jurisdiction. They can only investigate Federal crimes. It has been this way since the founding of our country, and it fixes responsibility for law enforcement on local authorities where it should be.
Americans have always feared a massive Federal Government police force. It is something that we have not ever favored. This is not paranoia but a wise approach, and I do not think it should be changed.
Instead of administering justice without fear or favor, this legislation that has been placed on this bill creates a new system of justice for individuals because of their sexual orientation or gender identity, providing them with a special protection, while excluding vulnerable individuals, such as the elderly or police officers or soldiers, from such special protections. I don't think we can justify that.
The purpose of the DOD reauthorization bill is to make sure the men and women who protect our freedoms have the necessary resources to continue to do the fabulous job they have been doing. We should not deviate from this path by addressing matters wholly unrelated to the defense of our Nation.
A bill of such breadth and lack of clarity as this should be carefully reviewed with the opportunity for discussion and amendment in committee. Yet this legislation had no markup in any committee. In fact, no version of the bill has been marked up since 2001, and this version is quite different and more expansive than the 2001 bill.
The committee did hold a quickly thrown-together hearing on June 25 in which Attorney General Holder himself appeared. The Attorney General, however, failed to point to one single serious incident in the past 5 years, when I asked him that question, where the types of crimes that are referred to in the bill, to give special Federal protection to select individuals, were not being prosecuted by State and local governments.
Additionally, the Attorney General refused to say attacks on U.S. soldiers predicated on their membership in the military by, for example, a Muslim fundamentalist, could be considered a hate crime.
It is baffling to me, given previous opposition and serious concerns which have been raised about this legislation, that the act, instead of being constrained, is actually expanded in a vague and awkward way. It focuses on the perception of what someone might have been thinking when they committed the crime and includes categories which are undefined and exceedingly broad, such as gender-related characteristics and gender identity. From questions that have been raised, these categories do not have clear meaning. During the course of debate on hate crimes legislation--a debate that started in 2001--amendments have been offered to also protect our military men and women, where it is unquestioned they have been targeted. Those amendments were rejected.
Mr. President, I will briefly outline my opposition to the legislation in the following ways:
The hate crimes amendment is unwarranted, possibly unconstitutional-- certainly, I believe it is unconstitutional in certain parts--and it violates the basic principle of equal justice under the law. The hate crimes amendment to this bill has been said to cheapen the civil rights movement.
When Congress passed the original civil rights statute in 1968, it criminalized violent and discriminatory actions directed at individuals because of race, color, religion, or national origin. There was, sadly, quite a substantial body of evidence that crimes were being committed against minorities and they were not being prosecuted. Section 245 that was then passed was never envisioned by Congress to be a hate crimes statute but one, rather, that would ensure access by minorities to specific activities legitimate to their freedom, such as enrolling in public schools, enjoying the benefit of programs administered by the State, or attending court as a juror.
In 1968, care was taken to ensure that the underlying statute was carefully crafted and narrowly tailored to address the problem of access to ensure that criminal activity fell within the confines of the constitutional requirement that there be a Federal nexus with interstate commerce. The statute enumerates six instances in which a crime could be charged. That statute says this:
Whoever, whether or not acting under the color of law, by
force or threat of force willfully injures, intimidates or
interferes with, or attempts to injure, intimidate or
interfere with any person because of his race, color,
religion or national origin and because he is or has been. .
. .
And then it lists specific areas that would encompass a criminal offense.
(a) enrolling in or attending any public school or public
college.
So if anyone who was attempting to attend a public school or college was interfered with or intimidated because of their race, color, religion or national origin, that would be the offense.
(b) participating in or enjoying any benefit, service,
privilege, program, facility or activity provided or
administered by any State or subdivision thereof.
In other words, you can go to the city hall, you can go to the health department, and you cannot be discriminated against because of your race or background.
Unfortunately, I have to say there were areas of the country-- particularly in my area of the South--where that was not so. People were being unfairly treated. In fact, in some other areas of the country also. I believe great care was taken with that act because, as I said, there was strong evidence to suggest that a Federal expansion of criminal law would be appropriate to deal with it.
So the history of civil rights violations caused and fully justified Congress's passage of this statute. There was direct evidence, for example, that African Americans were being denied the right to vote or intimidated at voting precincts without State and local law enforcement protecting them. There was much evidence, sadly, that other rights of African Americans were not being protected.
But that is not the case with this amendment, and I will talk about that in a minute. Gays and lesbians have not been denied basic access to things such as health or schooling or to the ballot box. They openly are able to advocate their positions today, which I think is certainly healthy, and have no difficulty in approaching government officials at whatever level.
When Eric Holder testified a few weeks ago before the Judiciary Committee, I asked him point-blank for direct evidence that hate crimes against individuals over the past 5 years, because of their sexual orientation or
otherwise, were not being prosecuted by local authorities. Instead of answering the question, he referred me to four cases in his written testimony which he had delivered to the committee. Let me make the number clear as strong evidence that these cases are being prosecuted.
The Attorney General could not come up with 4,000 cases or 400 or 40 cases. He only named four cases in 5 years. So we took a look at those four cases he cited in his testimony, and this is what we found.
In one case, Joseph and Georgia Silva assaulted an Indian-American couple on the beach. Although there was evidence that racial and ethnic slurs were used during the altercation, a California El Dorado County judge ruled that prosecutors failed to produce sufficient evidence that the alleged assault was motivated by racial prejudice. The prosecutor had pursued a hate crimes conviction, including charging Silva with a felony assault, punishable by up to 3 years in prison. The evidence, according to the judge, was that racial slurs were used in the heat of anger. There was no evidence the attack was initiated because of ethnicity.
Both Joseph and Georgia Silva were convicted of assault, the basic crime that they committed, and Joseph Silva was sentenced to 6 months in prison and 3 months probation, while Georgia was sentenced to 1 year in prison.
So the question is, was there an important Federal right left unaddressed that needed to be vindicated by charging this couple again for the crime arising from that assault? In other words, that is what this bill does. It says if we are unhappy with the result in State court under a select group of crimes, the Federal Government can try the case again.
You might say, well, there is a double jeopardy clause in the Constitution; you can't be tried twice for the same crime. Good; if you asked that question, you get an A in constitutional law. However, there is an answer. It has long been established that the States are sovereign and the Federal Government is sovereign. So an individual can be tried by two separate sovereigns without implicating the double jeopardy clause of the Constitution. However, we have always understood that ought not to be done lightly. It ought not be done without a real justification because it violates the spirit of the double jeopardy clause of the Constitution.
Attorney General Holder also cited a 2003 case in Holtsville, NY. In that case, three White men, while using racial slurs, assaulted a group of Latino teenagers as they entered a Chili's restaurant. One of the three defendants entered a guilty plea for his involvement in the assault and was sentenced to 15 months in prison. The other two defendants proceeded to trial and were acquitted because the jury apparently concluded there was insufficient evidence to prove beyond a reasonable doubt that the offense that occurred was to deny the victims access to the restaurant. So they had a trial, and one was convicted and two were not.
The Attorney General cited a South Carolina case where a gay man was assaulted after leaving a bar. During the altercation, he fell and he suffered a fatal strike to the head from the concrete. Stephen Miller was convicted of involuntary manslaughter and sentenced to 5 years in prison.
Finally, the Attorney General cited a case from here in the District of Columbia where a transgender prostitute was murdered. Apparently, after Derrick Lewis discovered that the prostitute he had picked up in his automobile was not female, and the prostitute refused to get out of his car, an altercation of some kind occurred--an argument--and he had a gun and shot and killed this transgender individual. He eventually pled guilty, gave a full statement of what happened, and was sentenced to 10 years in prison. The evidence showed they had begun fighting and that is when he pulled the gun and shot him. He said the individual would not get out of the car.
Well, those are not insignificant crimes, but I can just advise my colleagues, if we just pause one moment and think, we know that at this very moment thousands, maybe 10,000 or more trials are ongoing in State and local courts all over America, and they do not always end as people would like them to end. What this bill does basically is it provides an opportunity for the Federal Government to pick and choose certain crimes they want to prosecute again to get the kind of justice they think might be likely. That is a broad power that we give to the Attorney General and a broad statute I don't believe is compelled by the facts that are happening in America today.
When my staff followed up with the Office of the Attorney General to see why they listed just these cases, the response wasn't that State and local law enforcement were not doing their jobs but that the Attorney General believed the cases were under prosecuted. Citing four cases over 5 years as being underprosecuted is not the kind of evidence needed to justify the passage of such an expansive new piece of legislation that injects Federal prosecutors in areas of crime not heretofore occurring.
After the Judiciary hearing, both Senator Coburn and I sent followup questions to the Attorney General to provide him an additional opportunity to demonstrate that the bill was necessary because of under prosecution, as he had testified. Senator Coburn asked this question:
Precisely how many hate crimes is the Justice Department
aware of that have gone unprosecuted at the State and local
level?
This is the answer we got from the U.S. Attorney General:
The Department believes that our partners at all levels of
law enforcement share our commitment to effective hate crimes
enforcement. The Department does not have access to precise
statistics of hate crimes that have gone unprosecuted at the
State and local level, and we are unaware of any source for
such comprehensive information of unprosecuted offenses
generally. Federal jurisdiction over the violent bias-
motivated offenses covered under S. 909 is needed as a
backstop for State and local law enforcement, to ensure that
justice is done in every case.
So he is suggesting that, in a select group of cases that are on the front burner today, the Attorney General needs this legislation--S. 909, which has now been attached to the Defense bill--as a backstop for State and local law enforcement to ensure that justice is done in every case.
Well, there are many prosecutorial and jury decisions that are made in State courts every day with which one could disagree. The question is whether the Federal Government will be empowered to ensure justice is done in every case.
I just want to share the reality of the world with my friends here, that anyone, I guess, can conclude that a case didn't end justly for them. One distinguished jurist is famously quoted as saying, ``To speak of justice is the equivalent of pounding the table. It just adds an element of emotion to the discussion.'' But whatever we mean by that word, it basically means the Attorney General gets to decide whatever he wants to do. I am not sure this is good legislation. I think legislation ought to be crisp and clear and set forth criteria by which a prosecution occurs or does not occur, leaving not so much broad discretion among the prosecutorial authorities.
I submitted, after Senator Coburn--or at the same time, really--a similar question because I believed he had not been responsive to my question, and I asked this about our colleague, referring to Senator Hatch--of course a former chairman of the Judiciary Committee and who has worked on this issue for a number of years--and my question is this:
Senator Hatch in the past has offered a complete substitute
to similar legislation, which would require that a study be
conducted to prove that there is an actual problem with hate
crimes not being prosecuted. Do not give me a general
response that there are some problems out there. I would like
you to provide the Committee with an exact and precise number
of hate crimes the Justice Department is aware of which have
gone unprosecuted at the State and local level. Please detail
every example you or anyone in the Department of Justice is
aware of where no prosecutorial effort took place.
This was the answer we got:
The Department is unable to provide an exact number of
cases in which State, local or tribal jurisdictions have
failed to prosecute hate crimes because we are not aware of
any such compilation of data.
Senator Hatch has been offering this amendment for a study for a decade.
The Attorney General goes on to say:
When the Department receives complaints it clearly lacks
jurisdiction to prosecute, these matters generally are never
opened as investigations. . . .
Let me just say, if this legislation is passed it will have one dramatic, undiscussed impact. Federal law enforcement agents--and there are not many. You may have a city with 300 police officers in it and 10 FBI agents, another hundred sheriffs' deputies, another number of State officers. Now huge numbers of crimes will be coming across the desk of the FBI, which has terrorism, white-collar crime, bank fraud which they need to be working on today, violent crimes and drug smuggling. Now they are going to have to review hundreds of complaints about cases they had not heretofore had jurisdiction of and did not have to review. I just raise that point as an aside.
Based on the Attorney General's response, I conclude that the bottom line is there is nowhere near the real evidence needed to justify this legislation. No one in this body has produced the evidence, and the Attorney General of the United States, who is promoting the bill, has not produced any. Attorney General Holder's response, instead of demonstrating the need for hate crimes legislation as written, provides verification that it is not necessary, and it raises a question of whether this is driven by political interests at this time. It is easy to complain that anybody who opposes a hate crimes bill favors hate. That is not a fair charge. I think most of our colleagues fully understand that. But politically that is the suggestion some have made when this legislation has been objected to by people with very valid concerns.
As a matter of fact, one of the studies heavily relied on by the Attorney General in support of this bill is a 2008 report published by the National Coalition of Anti-Violence Programs, which is composed primarily of lesbian, gay, bisexual, and transgender groups. They have every right to do those studies and present them, but it is a coalition clearly with a vested interest in the legislation, and it should be examined carefully. The Attorney General had to rely on these types of reports because crime statistics do not support the notion that the incidence of hate crimes has increased. Even though we are doing a better job of reporting those today, still over the past 10 years the number is down, down slightly, even though population is up in our country.
Furthermore, in a rushed attempt to provide answers to the committee prior to this amendment being filed, the Department seemed to put little thought into their responses to our questions. As a matter of fact, it appears the Attorney General didn't think the issue important enough to answer them himself. He let his staff people answer, when he was the one who appeared before the committee and we were following up on his personal testimony.
A number of arguments and statements have been made, including those by the Attorney General, that there are quite a few of these incidents, tens of thousands of these incidents over the last number of years. But overwhelmingly these despicable incidents are of vandalism, many by juveniles. Let me make clear that even those incidents are significant and deserve prosecution and investigation and, where appropriate, stiff punishment. But let's look at the views of the members of the U.S. Commission on Civil Rights, our own U.S. Civil Rights Commission, who have examined this legislation carefully. Six of its eight members signed a strong letter to the President and to the Judiciary Committee to oppose hate crimes legislation. Did I mean to say the Civil Rights Commission wrote in favor it? No. But to oppose it. Their letter, dated June 16--just last month--addressed to the Members of the Senate and the President, said this:
We believe that the MSHCPA [Matthew Shepard Hate Crimes
Prevention Act] will do little good and a great deal of harm.
Its most important effect will be to allow Federal
authorities to reprosecute a broad category of defendants who
have already been acquitted by State juries, as in the Rodney
King and Crown Heights cases more than a decade ago. Due to
the exception for prosecution by ``dual sovereigns,'' [that
is the two sovereign entities] such double prosecutions
technically are not violations of the double jeopardy clause
of the U.S. Constitution. But they are very much a violation
of the spirit that drove the Framers of the Bill of Rights,
who never dreamed that Federal criminal jurisdiction would be
expanded to the point where an astonishing portion of crimes
are now both State and Federal offenses. We regard the broad
federalization of crime as a menace to civil liberties. There
is no better place to draw the line on that process than with
a bill that purports to protect civil rights.
They go on to say:
While the title of MSHCPA suggests that it will apply only
to ``hate crimes,'' the actual criminal prohibitions
contained in it do not require that the defendant be inspired
by hatred or ill will in order to convict. It is sufficient
if he acts ``because of'' someone's actual or perceived race,
color, religion, national origin, gender, sexual orientation,
gender identity or disability.
I am quoting from the Civil Rights Commission letter.
Rapists are seldom indifferent to the gender of their
victims. They are virtually always chosen ``because of''
their gender. A robber might well steal only from women or
the disabled because, in general, they are less able to
defend themselves. Literally they [these victims] are chosen
because of their gender or disability.
The letter goes on to state their belief that every rape in America would now be declared a crime under this bill because it is an action taken against someone because of their gender.
Professor Gail Heriot, a member of the U.S. Commission on Civil Rights, testified at our June 25 hearing. She made clear that all rapes would be covered under the bill and that, indeed, this was intentional. She said:
This wasn't just sloppy draftsmanship. The language was
chosen deliberately. Officials understandably wanted
something susceptible to broad construction, in part because
it makes prosecutions easier. As a staff member of the Senate
Judiciary Committee back in 1998, I had conversations with
the Department of Justice representatives. They repeatedly
refused to disclaim the view that all rape would be covered,
and resisted efforts to correct any ambiguity by redrafting
the language. They wanted a bill with broad sweep. The last
thing they wanted was to limit the scope of the statute's
reach by requiring that the defendant be motivated by ill
will toward the victim's group.
I think that is a serious charge made by a member of the Civil Rights Commission about the purpose of the Department of Justice in supporting this act.
I would note, it is an inevitable delight of prosecutors to have more and more power and more and more ability to prosecute criminals. That is what they do. They are wonderful people. I never enjoyed anything more than being a prosecutor, wearing a white hat every day to work and trying to vindicate decent people from criminal acts. But that is just a tendency of the prosecutorial mindset that we ought not to forget.
The truth is, during the recent hate crimes hearing, no one who testified in favor of the bill could point to a single incident where, I think, a valid hate crime was not pursued or prosecuted by State and local law enforcement officers.
In the latest statistics that are available, of the 2006 hate crimes reported in 2007, only nine were classified as murder or nonnegligent manslaughter. That is certainly nine too many. I think every one should be prosecuted. But no complaints have been raised that any of these were not vigorously or fairly prosecuted. Indeed, two-thirds of the offenses involved property defacement, such as graffiti and name- calling. Missing from the analysis is any evidence that the crimes are not being prosecuted at the State and local level. Indeed, 45 of the 50 States and the District of Columbia already have and enforce hate crimes laws. Although the language is broad and some could criticize it, these States have passed these bills, and they are able to enforce them.
Statistics show that these hate crimes, even with better reporting, have decreased slightly over the years. Forty-four States have stiffer penalties for violence related to race, religion, or ethnicity, and 31 States have tougher penalties on violence related to sexual orientation.
The question arises, do we have a basis for this massive and historic change in Federal enforcement of what have been State crimes?
Perhaps Mr. Andrew Sullivan--an openly gay man who has pioneered the effort to have gays in the military and is a well known and an able writer, provides the answer. Mr. Sullivan had this to say about the legislation.
The real reason for hate crime laws is not the defense of
human beings from crimes. There are already laws against
that--and Matthew Shepard's murderers were successfully
prosecuted to the fullest extent of the law in a State that
had no hate crime law at the time.
The real reason for the invention of hate crimes was a hard
left critique of conventional liberal justice and the
emergence of special interest groups which need boutique
legislation to raise funds for their large staffs and
luxurious buildings. Just imagine how many direct mail pieces
have gone out explaining that without more money, more gay
human beings will be crucified on fences. It is very, very
powerful as a money-making tool, which may explain why the
largely symbolic Federal bill still has not passed (if it
passes, however, I'll keep a close eye on whether it is ever
used.)
This is a gay man expressing his opinion. No doubt he takes these issues very seriously, and symbolism is important in our political world, but we need to be careful that statutes that become a permanent part of our criminal code are supported by evidence and principle.
I do not think our focus here is to deal with symbolic legislation that is broad and can expand Federal criminal jurisdiction beyond its historic role and where the facts do not support the need. In other words, more narrowly tailored legislation consistent with a constitutional right could very well be something this Congress would want to pass. To pass legislation so extremely broad again could give Federal jurisdiction for the first time in history to every rape that occurs in America. It ought to be looked at with great care and ought not to be stuck onto a defense bill and moved forward, in my opinion.
The Constitution endows Congress with limited and enumerated powers. There is no general police power in the Federal Government. So at this point, I wish to raise issues with the constitutionality of the hate crimes provision.
Congress's power is limited to what it can regulate under
the Commerce Clause. The proposed legislation is based upon
the idea that a discrete crime in a local community may have
an impact on interstate commerce. This is the same theory
that was rejected in both U.S. vs. Lopez and U.S. vs.
Morrison, where the Supreme Court essentially ruled that
intrastate violent conduct does not impact commerce normally.
Nat Hentoff, a well-respected noted civil rights and civil libertarian attorney and writer recently wrote about some constitutional concerns he has with the legislation. This is what he said:
In the definitive constitutional analysis of James B.
Jacobs and researcher Kimberly Potter, it is documented in
``Hate Crimes: Criminal Law and Identity Politics'' that in
``Grimm v. Churchill the arresting officer was permitted to
testify that the defendant had a history of making racial
remarks. Similarly, in People v. Lampkin, the prosecution
presented as evidence racist statements the defendant had
uttered six years before the crime for which he was on
trial,'' as specifically relating to the offense.
As for the 14th Amendment's essential requirement that no
person be denied ``the equal protection of the laws,'' there
is carved above the entrance to the Supreme Court the words
``Equal Justice Under Law.''
This legislation, certain to be passed by the Senate, now
it seems will come to the Supreme Court.
And I am quoting Mr. Nat Hentoff, the well-known and respected civil libertarian civil rights attorney. He says this:
When it comes before the Supreme Court, I hope the Justices
will look up at the carving as they go into the building.
They should also remember that the Fifth Amendment makes
clear: ``nor shall any person be subject for the same offence
to be twice put in jeopardy.''
But the House hate crime bill allows defendants found
innocent of that offense in a state court to be tried again
in federal court because of insufficiently diligent
prosecutors; or, as Attorney General Holder says, when state
prosecutors claim lack of evidence. It must be tried again in
federal court. Imagine Holder as the state prosecutor in the
long early stages of a Duke University lacrosse rape case.
What also appalls me, as the new federal bill races toward
a presidential signature, is that for many years, and now,
the American Civil Liberties Union approves ``hate crimes''
prosecutions. I have long depended on the ACLU's staff of
constitutional warriors to act persistently against
government abuses of our founding documents. And these
attorneys and analysts have been especially valuable in
opposing the results of executive branch lunges against the
separation of powers in the Bush-Cheney years, and still
under Obama.
Then he says this:
Is there no non-politically correct ACLU lawyer or other
staff worker or anyone in the ACLU affiliates around the
country or any dues-paying member outraged enough to demand
of the ACLU's ruling circle to at last disavow this
corruption of the Constitution?
That is Mr. Hentoff's view of it.
So this hate crimes amendment is a substantial overreach by Congress, I do believe. It is not carefully crafted or narrowly tailored. Unlike the historic civil rights statute, it seeks to federalize the violent, noneconomic conduct that is local in nature and has little or no Federal nexus.
The Supreme Court has held that violent conduct that does not target economic activity is among the types of crimes that have the least connection to Congress's commerce power. However, this is precisely the sort of violent, noneconomic conduct that this amendment would federalize.
If this approach were permissible, it would put Congress on a path to rely on the Commerce Clause and legislate any criminal law it wants. When it comes to criminal law, Congress would no longer be a body of limited and enumerated powers but would have plenary power to criminalize any and all conduct that is already criminalized by the States, a clear violation of our historical policy of not taking over State and local law enforcement.
There are still a lot of complaints over the drug laws aggressively prosecuted when I was a Federal prosecutor, and many think that was an overreach. When drugs come in, the vast majority from outside the country, they move as interstate commerce, and the courts have held that up.
But there is still intellectual criticism and concern about it. But in this case, you do not have the kind of dramatic nexus, and you also lack the evidence to suggest those cases are not being effectively prosecuted. So the sponsors have also tried to ease constitutional concerns by citing the 13th, 14th and 15th amendments.
The 13th amendment provides Congress with the limited authority to abolish ``all badges and incidents of slavery in the United States.'' I hope my colleagues are not seriously attempting to argue that assaulting someone because of their religious views or gender is tantamount to slavery.
The 14th and 15th amendments apply only to State actions, and since we have already established that States are vigorously prosecuting these actions and not ignoring them, I do not think this is a valid approach.
Finally, I would note that the legislation raises questions concerning the constitutional imperative that there be ``equal justice under law.'' Is there a legitimate, justifiable reason to punish one rape differently than another rape simply because someone decides the first rape was committed out of hate or actually because of the gender of the victim? I think the victims would say the same thing, the criminal should be punished to the fullest extent of the law.
This legislation would add a different element to certain crimes, and I know, as a former prosecutor, make it more difficult and more expensive to obtain a conviction, especially when you have to prove an individual's thought process as an underlying element to the offense.
This bill at bottom tries to distinguish between assaults by declaring if someone assaults and kills his girlfriend because she broke up with him it is not a Federal offense, but if he kills her because she claims she wanted to explore her sexual orientation and he became upset and killed her, that would be a Federal offense.
Senator Hatch offered a complete substitute on Thursday night. It was rejected. His proposal would require that a study be conducted so actual evidence can be obtained to see if there is a real serious problem with States not prosecuting these matters.
For some reason, even though Senator Hatch has been trying to get it passed for quite a number of years, the study has never been conducted, and all proposals for such a study have been rejected. I fear it is because perhaps Mr. Sullivan got it right. It is not so much about the failure of States to prosecute these crimes but about an underlying idea to pass a symbolic piece of legislation.
There is no good reason to pass such a broad piece of legislation. To pass it would be unwise. No one believes that individuals should be assaulted because of their beliefs, their gender or their sexual orientation. That type of behavior is unacceptable and should be prosecuted.
It has been prosecuted. I am sure State and local law enforcement officers will continue to do so. I believe
that if my colleagues would study the legislation and think about what they are doing, they would see that this is more unwise and the objections they have heard have far more weight than they had thought initially.
It seems like a good idea. Who would want to be against a crime that says it wants to punish hate? But there are serious matters and constitutional issues, as I noted from the Civil Rights Commission, from the civil rights attorneys such as Mr. Nat Hentoff.
I think, in truth, the Attorney General should have been more balanced in his testimony before the Judiciary Committee. He came pushing this legislation without listening or expressing any concern. But I do think he should have pointed out that it represents one of the largest expansions of Federal law enforcement in history. He should be the first to point out and express that concern. He should not allow politics to drive law in America.
I know most of my colleagues think this is the right thing to do. I wish I had been able to participate more in the debate before it was a done deal the other night. I was involved at the same time, of course, with the confirmation process.
Hopefully, we can watch this legislation come with some ideas that curtail its potential for abuse and make it better. But, in reality, I want my colleagues to know it is time for us in Congress to step back and question carefully any proposal to create new or further expand federal criminal jurisdiction that would encroach upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction.
I yield the floor.
Did we get an agreement on the time before we vote?
Madam President, I thank Senator Levin. It is always a pleasure to work with him and others who work with us to make sure that when we prosecute a hate crime that results in death, that it is possible to have the death penalty in Federal court. I think that is appropriate in those instances where it may be appropriate for the Federal Government to proceed with such a death penalty prosecution. It would be odd that it would not be possible and a crime could have resulted--easily in multiple murders--by one of the most vicious criminals one can imagine.
The next amendment I call the soldiers amendment. It is distinct from the hate crimes legislation we have been discussing. It expands the protections that the United States of America provides to its soldiers. Remember, we provide protections now to Federal officers, postmen--any Federal officer of the United States is protected, and so are soldiers in certain circumstances.
This amendment would create a new Federal crime which puts members of the U.S. military on equal footing with other protected classes. It makes it a crime to knowingly assault, batter a serviceman or immediate family member or knowingly destroy or injure
their property ``on account of the military service or status of that individual as a United States serviceman . . . ''
It is not a total expansion of Federal law, but it says if you are attacked or assaulted, battered, or your family members are simply because you are a member of the U.S. military serving your country, then the Federal Government would obviously have the ability to prosecute because it is a high duty, and no higher responsibility, for the U.S. Government to protect its soldiers from assaults arising from their service to our country.
Madam President, we have had problems with these assaults on our military officers. This will be a good step in correcting that situation.
I thank the Chair for the opportunity to speak. I hope my colleagues will support the amendment.
Madam President, I just want to say how much I appreciate the Senator's efforts. It is consistent with the retired law enforcement officers bill we passed, as I recall, not long ago that allowed them to carry their weapons in other States under certain circumstances. When people are traveling, they many times feel more vulnerable and they feel a greater need to protect themselves.
I think it is a sound and reasonable approach--limited but important--and I thank Senator Thune for offering that amendment.
Madam President, we have been busy in the Judiciary Committee with the Sotomayor hearing. I have not been able to participate in the debate over the hate crimes legislation. I want to follow up a little bit more on what I said earlier today. I have an obligation to assert a principle that I think is important in Federal criminal law.
I was a Federal prosecutor for 15 years and was very familiar with the jurisdiction issues that are involved in Federal criminal law. We need to do this right. I do not think we have done that right.
The bill has basically been made a part of this Defense bill already, so in one sense I guess the die is cast, but I will share a few thoughts.
To repeat briefly, I will quote from the letter from six, I believe, of the eight members of the U.S. Commission on Civil Rights that was received June 16, was sent to the President and members of the Judiciary Committee. They said:
We believe the MSHCPA--
That is the so-called hate crimes legislation, this is their opinion, six of the eight members--
will do little good and a great deal of harm. Provisions in
the bill ``are very much a violation of the spirit that drove
the framers of the Bill of Rights, who never dreamed that
federal criminal jurisdiction would be expanded to the point
where an astonishing proportion of crimes are now both state
and federal offenses. We regard the broad federalization of
crime as a menace to civil liberties. There is no better
place to draw the line on that process than with a bill that
purports to protect civil rights.
In other words, this is an official commission of the U.S. Government, appointed by Presidents, and that is what they sent to us.
Gail Heriot, who is a member of the commission, testified at our judiciary hearing a couple of weeks ago. She testified that:
The proposed hate crimes legislation, which is being touted
as a response to murders, should not have been treated as a
mere photo opportunity. It is real legislation with real
world consequences--and not all of them are good. A close
examination of its consequences, especially its consequences
for federalism and double jeopardy protections, is therefore
in order.
Given the many civil liberties issues that would raise,
including the routine potential for double jeopardy
prosecutions, this is a step that members of the Senate
should think twice before they take.
Bob Knight, a senior fellow--I guess I am going to show some members, liberal lawyers and conservative advocates, also sharing concern over this legislation. I hope my colleagues have not treated these concerns too lightly.
It is hard to vote against legislation that purports to fight hate. You do not want to be somebody defending hate crimes. I certainly do not. Neither do these good people who have expressed their concern.
Bob Knight, a senior fellow at the American Civil Rights Union, said this:
The proposed law, whatever its sponsors' good intentions,
is a grave threat to the constitutional guarantee of equal
protection under the law. America's legal heritage of judging
actions rather than thoughts or beliefs, and it will
politicize law enforcement by making some crime victims'
cases more important than others.
Beyond the obvious unfairness of excluding some groups from
enhanced protections, such as the elderly, homeless, veterans
and children--
They are not given enhanced protections of the hate crimes bill--
the proposed law advances an underlying ambitious agenda to
punish individuals and groups that hold traditional values.
This law:
. . . lays the groundwork for the concept of ``thought
crime,'' in which someone's views or beliefs are
criminalized. Violent acts are already illegal and punished
under criminal law. This law adds penalties based on thought.
In order to prove that the defendant holds particular beliefs
that motivated a criminal act, his or her speech, writing,
reading materials and organizational memberships would become
key evidence.
Brian Walsh, a senior fellow at the conservative Heritage Foundation, says this:
The criminal justice system is in great need of principled
reform . . . this reform should not be driven by some
partisan politics. Unfortunately, the HCPA fails to measure
up to this standard and would substantially undermine
constitutional federalism and the high regard in which the
American public should hold Federal criminal law.
The three main problems with this amendment are that:
. . . the Act's new ``hate crimes'' offenses are far broader
and more amorphous than any properly defined criminal offense
should be--
I agree with that, parenthetically. He goes on to say:
--and they thus invite prosecutorial abuse, politically
motivated prosecutions, and related injustices. The Act's
``hate crimes'' offenses violate constitutional federalism by
asserting Federal law-enforcement power to police truly local
conduct over which the Constitution has reserved sole
authority to the 50 states. The Act's ``hate crimes''
offenses would be counterproductive, for nearly all States
have--tough ``hate crimes'' laws
and the violent conduct underlying the Act's ``hate crimes''
offenses has always been criminalized in all 50 states.
Nat Hentoff is a famous civil rights and libertarian attorney, a writer well known in the country as being a passionate advocate for civil liberties from an objective, I would say, point of view. He has respect from both conservatives and liberals, but I guess his background has mostly been on a more liberal approach to law.
He starts off saying:
Why is the press remaining mostly silent about the so-
called ``hate crimes law'' that passed the House on April 29?
The Local Law Enforcement Hate Crime Prevention Act passed in
a 249-175 vote--17 Republicans joined with 231 Democrats.
These Democrats should have been tested on their knowledge of
the First Amendment, equal protection of the laws . . . and
the prohibition of double jeopardy. . . . No American can be
prosecuted twice for the same crime or offense. If they had
been, they would have known that this proposal, now headed
for a Senate vote-- violates all these constitutional
provisions.
This bill would make it a federal crime to willfully cause
bodily injury--or try to--because of the victim's actual or
perceived ``race, color, religion, national origin, gender,
sexual orientation, gender identity or disability''--as
explained on the White House Web Site, signaling the
president's approval. A defendant convicted on these grounds
would be charged with a ``hate crime'' in addition to the
original crime and would get extra prison time.
The extra punishment applies only to these ``protected
classes.''
He quotes a Denver, CO criminal defense lawyer:
As Denver criminal defense lawyer Robert J. Corry Jr. asked
. . . ``Isn't every criminal act that harms a person a hate
crime?'' Then, regarding a Colorado ``hate crime'' law, one
of 45 such state laws, Corry wrote:
``When a Colorado gang engaged in an initiation ritual
specifically seeking out a `white woman' to rape, the Boulder
prosecutor declined to pursue ``hate crime'' charges. She was
not enough of one of its protected classes.''
Corry adds that the State ``hate crime'' law--like the
newly expanded House of Representatives Federal bill--``does
not apply equally,'' as the 14th amendment requires,
essentially instead:
``Criminalizing only politically incorrect thoughts
directed against politically incorrect victim categories.''
Hentoff concluded:
Whether you're Republican or Democrat, think hard about
what Corry adds:
``A government powerful enough to pick and choose which
thoughts to prosecute is a government too powerful.''
David Rittgers of the CATO Institute, a libertarian group, said this:
The Federal hate crimes being considered in the Senate
undermines the rule of law and shows casual disregard, if not
outright hostility, for the principles of limited government
and equality under the law. The bill Federalizes violent acts
against victims by reason of their actual or perceived race,
color, religion, national origin, gender, sexual orientation,
gender identity or disability.
Never mind that these acts are already prosecuted by the
states--45 of which have their own hate crime laws--and that
violent crimes of this nature are universally perceived as an
affront to justice. Matthew Shepard, a gay man brutally
killed in Wyoming, has provided one of the rallying cries for
passage of this legislation. His killers both received two
consecutive life sentences from a state court. James Byrd,
Jr., the African-American man dragged to death behind a truck
in Texas, is cited as another reason to pass the law. His
killers received death sentences or life imprisonment.
The federal government would also be authorized to
prosecute whenever ``the verdict or sentence obtained
pursuant to State charges left demonstratively unvindicated
the Federal interest in eradicating bias-related violence.''
While this doesn't violate the letter of the Supreme Court's
double jeopardy jurisprudence--the federal and state
governments are considered separate sovereigns--it certainly
violates its spirit.
The National Religious Broadcasters write they are opposed to the concept as well as the current legislative permutations of the so- called ``hate crimes.'' This legislation takes any conduct that is viewed as a threat to homosexuals or bisexuals or a threat to persons who want to immunize their religion from public debate and turns that threat or perceived threat into a species of criminal felony. As a consequence, this legislation will inevitably stifle the free exercise of religion and freedom of speech, and brings with it the very real likelihood of abusive prosecutions. Federal ``hate crimes'' laws also ignore the fact that the underlying core offense, the causing of bodily injury to another, is already criminalized in all 50 states.
The Research Council says this:
Hate crimes laws force the courts to guess the thoughts and
beliefs which lie behind a crime, instead of looking at the
crime itself.
The Family Research Council believes that all crimes should be prosecuted to the fullest extent of the law, and that every violent crime has some form of hate behind it. All around the country, crimes are being prosecuted in the State justice systems. American justice is being done. There is simply no need for a Federal hate crimes law.
Violent attacks upon people or property are already illegal, regardless of the motive behind them. With hate crime laws, however, people are essentially given one penalty for the action they engage in and an additional penalty for the particular and highly selective attitudes and thoughts that motivated these actions.
Motive-based analysis and intent-based analysis are not the same thing. For example, with the crime of manslaughter, intent-based analysis looks at whether the perpetrator intended the result. Hate crime legislation takes into account what the offender thinks, feels, or believes about the victim regardless of whether the perpetrator intended the result. This is why hate crimes may be referred to as ``thought crimes.''
The Traditional Values Coalition says:
The so-called hate crimes bill will be used to lay the
legal foundation and framework to investigate and prosecute
and persecute pastors, business owners, Bible teachers,
Sunday School teachers, youth leaders, Christian counselors,
religious broadcasters, and anyone else whose actions are
based upon and reflect the truths found in the Bible, which
have been protected by the first amendment.
That is not accurate? Well, they are concerned about that. And they object to the legislation.
The Concerned Women for America note that:
The legislation would violate genuine constitutional rights
in an attempt to address a nonissue, create a caste system of
victims, violate the spirit of the Double Jeopardy Clause of
the Constitution, and unintentionally extend privileges to
individuals who engage in illegal sexual acts even against
children.
I would share those thoughts and say that this is why this legislation has been controversial. The predicate for this legislation is the interstate commerce tag that is very weak. The Supreme Court has already found several Federal statues do not have sufficient interstate nexus to justify prosecuting a crime in Federal court.
I would say if a few people walk out in the pasture and one finds a rock and murders a person, as a Federal prosecutor for 15 years I will tell you, there is no jurisdiction federally to try and prosecute that case. It is a criminal case in the State court only. And to make it a Federal case, you have to have some sort of peg to hang your hat on, so to speak.
In that case, I do not think there is any. But if you are on a railroad train and you are traveling and you are in interstate commerce, you murder someone, that can be a Federal crime. If you steal from an interstate shipment, that can be a Federal crime. If you murder a postman, that is a Federal crime--or a Federal civil servant, and so forth. Those are Federal crimes. But normal murder, rape, robbery, theft, that occur by the tens of thousands every day all over America are not Federal crimes. They are not prosecutable in Federal court.
The very small number of FBI agents, compared to the massive numbers of police and sheriffs, deputies, and State law enforcement officers is such that there is no way they can ever begin to prosecute or investigate these crimes. They have to focus on those crimes that are uniquely Federal, vindicate a uniquely Federal interest.
With regard to the Civil Rights Act that was passed in the 1960s, it has some similarities, although it is more tightly written.
I will conclude with these thoughts: There was a demonstrable record of failure to prosecute violations of civil rights against African Americans in the South, sad to say, and in other places in this country. It appeared that local law enforcement was ineffective, sometimes unwilling, to vindicate those rights, and so the Civil Rights Act said: If you are going to school or a legal activity at the city or county or Federal Government or voting and you are interfered with, that can be a Federal offense.
There was a clear record to justify the need for Federal involvement in those cases. And most of those cases, I think virtually all, have been upheld as being sufficiently tied to interstate commerce to be a legitimate Federal crime to prosecute.
We asked the Attorney General at a hearing recently, can he name any cases? He did not name a single one. But he said in his statement there were four. After the hearing we submitted questions to the Attorney General: Did he have any cases to show that these prosecutions are not being effectively prosecuted locally?
He stood by the four. That is all we ever got over a period, I think, of 5 years. At least that is what I asked him for. And the four cases were very insubstantial. In each one of the four cases prosecutions were initiated. I think in all but one convictions were obtained.
Some people were not happy with the results of the case, and they would have liked the Federal Government to take it over and prosecute it again. But as I said, there are tens of thousands of cases prosecuted every day, and many victims in those cases felt that the outcome of the case was not sufficient. They would like also for the Federal Government to prosecute it again. But they might not have been in these ``special classes'' that got this ``special benefit'' in this bill.
Do you see then what it is all about? It is basically saying that the Federal Government sits up and hovers above the criminal justice system, and it can decide whenever, based on the length of the chancellor's foot, I suppose, when a case has not effectively resulted in justice.
They said in their answer, they want to make sure that there is justice every time. That is a pretty high goal, I have got to tell you, especially when people might not agree. Juries make decisions. I hope we in this Congress will understand the huge responsibility we have to the historic concept that crimes of a local nature should be prosecuted locally, and that the Federal Government does not need to be involved in everything to try to ensure perfect justice.
Indeed, it is not involved in every case and it never has been. It should not be. I wanted to make these quotes a part of the Record, and call on the Members of the Senate as we go forward in the future to make sure that the legislation we pass is consistent with our heritage, which understands that the Federal Government does not have a general criminal power, has only narrow limited enumerated power to make crimes Federal, and we ought not overreach and create a situation in which, according to the U.S. Civil Rights Commission in their letter to us: Every single rape would be a Federal crime because the action would have been carried out as a result of the gender of the person being assaulted.
Ms. Heriot said she had talked with the Department of Justice in previous years about this, before she was on the Commission, and they refused to narrow the language because they wanted that broader language.
I think that is too broad. This bill is too amorphous and too broad and should not become law.
I yield the floor and I suggest the absence of a quorum.
