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June 25, 2009
Statement by Michael Lieberman
Senate Committee on the Judiciary
The Anti-Defamation League
Over the past decade, the League has been recognized as a leading resource on effective responses to violent bigotry, conducting an annual Audit of Anti-Semitic Incidents, drafting model hate crime statutes for state legislatures, and serving as a principal resource for the FBI in developing training and outreach materials to assist in the implementation of the Hate Crime Statistics Act (HCSA), which requires the Justice Department to collect statistics on hate violence from law enforcement officials across the country.
The Leadership Conference on Civil Rights
I. DEFINING THE ISSUE
2) The Nature and the Magnitude of the Hate Crime Problem in America in 2009
? The number of hate crimes committed against Hispanics and those perceived to be immigrants has increased each of the past four years for which FBI data is available - and hate crimes committed against individuals because of their sexual orientation has increased to its highest level in five years;
3) Punishing Bias-Motivated Violence: The Framework for Hate Crime Laws
Analogous to anti-discrimination civil rights laws. Hate crime laws are best viewed as a criminal justice system parallel to the thousands of federal, state, and local laws that prohibit invidious discrimination because of race or other identifying characteristic. In language, structure, and application, the majority of the nation's hate crime laws are directly analogous to anti-discrimination civil rights laws.
For example, Title VII of the Civil Rights Act of 1964, as amended, prohibits various discriminatory employment actions "because of" the employee or prospective employee's race, color, religion, sex, or national origin. One relevant section of the Fair Housing Act, 42 U.S.C. §3604 (a), prohibits interference with housing choices "because of [the victim's] race, color, religion, sex, familial status, or national origin." Further, a number of current federal criminal laws punish intentional discrimination on the basis of race, religion, or other characteristic. For example, by enacting 18 U.S.C. §242, the Reconstruction Era Congress made it a crime to deprive a person of constitutional rights "by reason of his color, or race" 18 U.S.C. § 245 makes it a crime to intentionally injure, intimidate, or interfere with any person's enjoyment of a federal right or benefit (or attempt to do so) "because of his race, color, religion, or national origin" and because the person is engaged in an enumerated federally-protected activity.
Like workplace and housing civil rights laws, the prohibited conduct under hate crime laws is the intentional selection of the victim for targeted, discriminatory behavior on the basis of the victim's personal characteristics.
Comparable to other status crimes. Many federal and state criminal laws provide different penalties for crimes depending on the victim's particular status. Virtually every criminal code provides enhanced penalties for crimes directed at the elderly, or the very young, or teachers on school grounds, or law enforcement officials. Legislators have legitimate and neutral justifications for selective protection of certain categories of victims - and enhanced criminal penalties - based on their judgment of the social harm these crimes cause.
Consistent with the First Amendment. The First Amendment does not protect violence - and it does not prevent the government from imposing criminal penalties for violent discriminatory conduct directed against victims on the basis of their personal characteristics. Hate crime laws do not punish speech. Americans are free to think, say, and believe whatever they want. It is only when an individual commits a crime because of those biased beliefs and intentionally targets another for violence or vandalism that a hate crime statute can be triggered. In Wisconsin v. Mitchell, 508 U.S. 476 (1993), the U.S. Supreme Court unanimously upheld the constitutionality of the Wisconsin penalty-enhancement statute - effectively removing any doubt that state legislatures may properly increase the penalties for criminal activity in which the victim is intentionally targeted because of his/her race, religion, sexual orientation, gender, or ethnicity.
Deterrent Impact. Law enforcement officials have come to recognize that strong enforcement of these laws can have a deterrent impact and can limit the potential for a hate crime incident to explode into a cycle of violence and widespread community disturbances. In partnership with human rights groups and civic leaders, law enforcement officials have found they can advance police-community relations by demonstrating a commitment to be both tough on hate crime perpetrators and sensitive to the special needs of hate crime victims.
Punishment to fit the crime. Laws shape attitudes. Bigotry cannot be outlawed, but hate crime laws demonstrate an important commitment to confront and deter criminal activity motivated by prejudice. Hate crime laws - like anti-discrimination laws in the workplace - are color-blind mechanisms which allow society to redress a unique type of wrongful conduct in a manner that reflects that conduct's seriousness. Since hate violence has a uniquely serious impact on the community, it is entirely appropriate for legislators to acknowledge that this form of criminal conduct merits more substantial punishment.
II. THE CASE FOR S. 909, THE MATTHEW SHEPARD HATE CRIME PREVENTION ACT
1) Deficiencies in Existing Federal Criminal Civil Rights Statutes
Under current law, the government must prove both that the crime occurred because of a person's membership in a protected group, such as race or religion, and because (not while) he/she was engaging in a federally protected activity. This unwieldy, overly-burdensome dual jurisdictional requirement has prevented the government from investigating and prosecuting a significant number of cases. In addition, federal authorities are currently unable to involve themselves in cases involving death or serious bodily injury resulting from crimes directed at individuals because of their sexual orientation, gender, gender identity, or disability.
The HCPA addresses both of these deficiencies. First, the legislation would eliminate the overly restrictive obstacles to federal involvement by permitting prosecutions without having to prove that the victim was attacked because he/she was engaged in a federally protected activity. Second, it would provide new authority for federal officials to work in partnership with state and local law enforcement authorities to investigate and prosecute cases in which the bias violence occurs because of the victim's actual or perceived sexual orientation, gender, gender identity, or disability.
The bill would give local law enforcement officials important tools to combat violent, bias-motivated crime. Federal support - through training or direct assistance grants - will help ensure that bias-motivated violence is effectively investigated and prosecuted. The legislation would also facilitate federal investigations and prosecutions when local authorities are unwilling or unable to act.
State and local authorities investigate and prosecute the overwhelming majority of hate crime cases - and will continue to do so after the HCPA is enacted. From
2) An Inadequate Patchwork of Laws: State and Federal Hate Crime Statutes
A. State Hate Crime Statutes
The inability of the federal government to investigate some hate crime cases - or provide forensic expertise or other aid - has resulted in unequal justice and unequal access to federal investigative and prosecutorial assistance.
? In Greenville, South Carolina on May 21, 2007, Sean Kennedy, a gay man, died of injuries sustained after he was attacked outside a bar. While making derogatory comments regarding Kennedy's sexual orientation, the assailant beat and punched him until he fell, hitting his head on the pavement. The killer was originally charged with murder, but his charge was reduced to involuntary manslaughter. He was sentenced to five years in prison, which was suspended to only three years with credit for the seven months he had already served. He was also ordered to attend both anger management and drug/alcohol management classes. South Carolina is one of five states with no hate crime statute - and the Federal government had no authority to investigate whether justice was served in this sexual orientation hate crime case.
? The June, 1998 bias-motivated murder of James Byrd, Jr in Texas, and the October, 1998 bias-motivated murder of Matthew Shepard in Wyoming sparked national outrage and concern. The Federal government had jurisdiction to assist in the investigation of the race-based murder of James Byrd, Jr, (because the crime had occurred on a road used in interstate commerce) - and appropriately provided over $250,000 in Byrne Grants to assist in the case. Federal authorities, however, could not provide similar assistance for the sexual orientation-based murder of Matthew Shepard. According to the chief investigator in the case, the small Albany County Sheriff's Department was forced to furlough five law enforcement employees in order to pay for costs associated with the successful investigation and prosecution of that high-profile case.
? In September, 2003, Billy Ray Johnson, a mentally disabled black man, was taken to a party, ridiculed, called racial slurs, knocked unconscious, and then dumped by the side of the road by four white men. Johnson suffered permanent brain damage from the attack. Predominantly white juries acquitted the defendants of all serious charges. Three of the perpetrators received 30-day sentences, and the fourth received a 60-day sentence. The Southern Poverty Law Center brought a civil suit of behalf of Johnson against two of the perpetrators and won a $9 million damage award in April, 2007. It is arguable that a federal criminal jury might have returned a guilty verdict had federal jurisdiction permitted such a prosecution.
The availability of expert federal hate crime assistance should not depend on the vagaries of the facts of a case, such as whether the attack occurs on a public highway, rather than in the private parking lot across the street.
The Hate Crime Statistics Act (HCSA) (28 U.S.C. § 534)
Enacting this law today helps move us toward our dream: a society blind to prejudice, a society open to all. Until we reach that day when the bigotry and hate of mail bombings, and the vandalisms of the Yeshiva school and the Catholic churches we've seen recently, and so many other sad, sad incidents are no more -- until that day, we must remember: For America to continue to be a good place for any of us to live, it must be a good place for all of us to live. http://bushlibrary.tamu.edu/research/public_papers.php?id=1791&year=1990&month=all
In the Violent Crime Control and Law Enforcement Act of 1994 (Public Law 103-322 September 13, 1994), Congress expanded coverage of the HCSA to require FBI reporting on crimes based on "disability."
The Church Arson Prevention Act (CAPA) (Public Law 104-155 July 3, 1996)
3) Limited Jurisdiction for Federal Hate Crime Prosecutions
Second, for the proposed new categories - gender, gender identity, sexual orientation, and disability - federal prosecutors will have to prove an interstate commerce connection with the crime -- similar to the constitutional basis relied upon for the Church Arson Prevention Act in 1997.
Third, like 18 U.S.C. § 245, the HCPA contains a restrictive certification requirement:
`(b) Certification Requirement-
Federal prosecutors can be expected to continue to defer to state authorities under its expanded authority - a fact that has led virtually every major law enforcement organization in the country and the National District Attorneys Association to support this bill. But the HCPA will permit prosecutions of bias-motivated violence that might not otherwise receive the attention they deserve. Supporters of the HCPA know well that new federal criminal civil rights jurisdiction to address crimes directed at individuals because of their gender, gender identity, sexual orientation, or disability will not result in the elimination of these crimes. But the possibility of federal involvement in select cases, the impact of FBI investigations in others, and partnership arrangements with state and local investigators in still other cases, should prompt more effective state and local prosecutions of these crimes.
4) The Disturbing Prevalence of Hate Violence
This data almost certainly understates the true number of hate crimes committed in our nation. Only 13,241 of the 17,000 law enforcement agencies in the United States participated in this data collection effort. And of those participating agencies, only 15.3% reported even a single hate crime.
Of special concern is the fact that reported crimes directed against Hispanics increased markedly - in a report in which virtually every other category of crime decreased. In fact, as previously mentioned, 2007 was the fourth straight year the FBI documented increased reported hate crimes against Hispanics. ADL recently documented a disturbing increase in the number of violent assaults against Hispanics, legal, and undocumented immigrants - and those perceived to be immigrants - by white supremacists and other far-right extremists in our report, "Extremists Declare 'Open Season' on Immigrants: Hispanics Target of Incitement and Violence." That report is available here: http://www.adl.org/main_Extremism/immigration_extremists.htm
Clearly these hate crime numbers do not speak for themselves. Behind each and every one of these statistics is an individual or a community targeted for violence for no other reason than race, religion, sexual orientation, disability, or national origin.
The FBI's 2007 HCSA report is available here:
The HCSA has proved to be a powerful, if incomplete, mechanism to confront violent bigotry against individuals on the basis of their race, religion, sexual orientation, or ethnicity. For that reason, the Anti-Defamation League and the Leadership Conference on Civil Rights especially welcome provisions in S. 909 that would mandate additional reporting requirements for hate crimes directed at individuals on the basis of their gender and gender identity - and for crimes committed by and against juveniles.
Very few states systematically collect statistics on these categories of hate crimes. Studies have demonstrated that victims are more likely to report a hate crime if they know a special reporting system is in place. Yet, studies by the National Organization of Black Law Enforcement Executives (NOBLE) and others have revealed that some of the most likely targets of hate violence are the least likely to report these crimes to the police. In addition to cultural and language barriers, some immigrant victims, for example, fear reprisals or deportation if incidents are reported. Many new Americans come from countries in which residents would never call the police -- especially if they were in trouble. Gay, lesbian, and transgender victims, facing hostility, discrimination, and, possibly, family pressures, may also be reluctant to come forward to report these crimes.
The history of the FBI's fine implementation of the HCSA, however, demonstrates that data collection efforts can spark increased public awareness of the problem and improvements in the local response of police and the criminal justice system to these crimes.
The legislation's proposed new data collection requirement for juvenile hate crime perpetrators and victims is also very important. There is a paucity of published information about juvenile hate crime offenders. The annual HCSA report does not provide specific information about either juvenile hate crime offenders or victims. An October 2001 report by the Justice Department's Bureau of Justice Statistics, however, provided disturbing information about the too-frequent involvement of juveniles in hate crime incidents.
This report, http://www.ojp.usdoj.gov/bjs/abstract/hcrn99.htm which carefully analyzed nearly 3,000 of the 24,000 hate crimes to the FBI from 1997 to 1999, revealed that a disproportionately high percentage of both the victims and the perpetrators of hate violence were young people under 18 years of age:
? 33% of all known hate crime offenders were under 18; 31% of all violent crime offenders and 46% of the property offenders.
5) Support From a Very Broad Coalition of Groups
? Federal Law Enforcement Officers Association
The Committee has also received supportive sign-on letters from 44 women's organizations, 64 disability rights organizations associated with the Consortium for Citizens with Disabilities, and 47 religious and faith organizations.
We urge the Senate to approve this important, long-delayed legislation as soon as possible.