Senate Section -

Remarks by KENNEDY, EDWARD (D-MA) on S. 622 Hate Crimes Prevention Act of 1999 [CR page S-2730, 78 lines] Attributed to KENNEDY, EDWARD (D-MA) By Mr. KENNEDY (for himself, Mr. Specter, Mr. Wyden, Mr. Schumer, Mr. Smith of Oregon, Mr. Daschle, Mr. Leahy, Mr. Torricelli, Mr. Akaka, Mr. Biden, Mr. Bingaman, Mrs. Boxer, Mr. Bryan, Mr. Chafee, Mr. Cleland, Mr. Dodd, Mr. Durbin, Mr. Harkin, Mr. Jeffords, Mr. Johnson, Mr. Kerrey, Mr. Kerry, Ms. Landrieu, Mr. Lautenberg, Mr. Levin, Mr. Lieberman, Ms. Mikulski, Mrs. Murray, Mr. Reed, Mr. Reid, Mr. Robb, Mr. Rockefeller, Mr. Sarbanes, and Mr. Wellstone): 

Mr. KENNEDY. Mr. President, it is a privilege to join Senator Spector, Senator Wyden, Senator Schumer, and Senator Smith in introducing the Hate Crimes Prevention Act of 1999. This bill has the support of the Department of Justice, constitutional scholars, law enforcement officials, and many organizations with a long and distinguished history of involvement in combating hate crimes, including the Leadership Conference on Civil Rights, the Anti-Defamation League, the Human Rights Campaign, the National Gay and Lesbian Task Force, the National Organization for Women Legal Defense and Education Fund, the National Coalition Against Domestic Violence and The Consortium for Citizens with Disabilities Rights Task Force. Congress has a responsibility to act this year to deal with the festering problem of hate crimes. The silence of Congress on this basic issue has been deafening, and it is unacceptable. We must stop acting like we don't care-- that somehow this fundamental issue is just a state problem. It isn't. It's a national problem, and it's an outrage that Congress has been A.W.O.L. Few crimes tear more deeply at the fabric of our society than hate crimes. These despicable acts injure the victim, the community, and the nation itself. The brutal murders in Texas, Wyoming, and most recently in Alabama have shocked the conscience of the nation. Sadly, these three crimes are only the tip of the hate crimes iceberg. We need to do more--much more--to combat them. I'm convinced that if Congress acted today, and President Clinton signed our bill tomorrow, we'd have fewer hate crimes in all the days that follow. Current federal laws are clearly inadequate. It's an embarrassment that we haven't already acted to close these glaring gaps in present law. For too long, the federal government has been forced to fight hate crimes with one hand tied behind its back. Our bill does not undermine the role of the states in investigating and prosecuting hate crimes. States will continue to take the lead. But the full power of federal law should also be available to investigate, prosecute, and punish these crimes. The Hate Crimes Prevention Act of 1999 addresses two serious deficiencies in the principal federal hate crimes statutes, 18 U.S.C. Sec. 245, which applies to hate crimes committed on the basis of race, color, religion, or national origin. First, the statute requires the government to prove that the defendant committed an offense not only because of the victim's race, color, religion, or national origin, but also because of the victim's participation in one of six narrowly defined "federally protected activities" enumerated in the statute. These activities are: (A) enrolling in or attending a public school or public college; (B) participating in or enjoying a service, program, facility or activity provided or administered by any state or local government; (C) applying for or enjoying employment; (D) serving in a state court as a grand or petit juror; (E) traveling in or using a facility of interstate commerce; and (F) enjoying the goods or services of certain places of public accommodation. Second, the statute provides no coverage for hate crimes based on the victim's sexual orientation, gender, or disability. Together, these limitations prevent the federal government from working with state and local law enforcement agencies in the investigation and prosecution of many of the most vicious hate crimes. Our legislation amends 18 U.S.C. Sec. 245 to address each of these limitations. In cases involving racial, religious, or ethnic violence, the bill prohibits the intentional infliction of bodily injury without regard to the victim's participation in one of the six "federally protected activities". In cases involving hate crimes based on the victim's sexual orientation, gender, or disability, the bill prohibits the intentional infliction of bodily injury whenever the act has a nexus, as defined in the bill, to interstate commerce. These provisions will permit the federal government to work in partnership with state and local officials in the investigation and prosecution of hate crimes. I urge the Senate to act quickly on this important legislation, and I look forward to working with my colleagues to bring it to a vote. I ask unanimous consent that the bill and a more detailed description of the bill be printed in the Record. There being no objection, the material was ordered to be printed in the Record, as follows: 
 

 S. 618 Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, 

SECTION 1. SHORT TITLE. This Act may be cited as the "Hate Crimes Prevention Act of 1999". 

SEC. 2. FINDINGS. Congress finds that-- (1) the incidence of violence motivated by the actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability of the victim poses a serious national problem; (2) such violence disrupts the tranquility and safety of communities and is deeply divisive; (3) existing Federal law is inadequate to address this problem; (4) such violence affects interstate commerce in many ways, including-- (A) by impeding the movement of members of targeted groups and forcing such members to move across State lines to escape the incidence or risk of such violence; and (B) by preventing members of targeted groups from purchasing goods and services, obtaining or sustaining employment or participating in other commercial activity; (5) perpetrators cross State lines to commit such violence; (6) instrumentalities of interstate commerce are used to facilitate the commission of such violence; (7) such violence is committed using articles that have traveled in interstate commerce; (8) violence motivated by bias that is a relic of slavery can constitute badges and incidents of slavery; (9) although many State and local authorities are now and will continue to be responsible for prosecuting the overwhelming majority of violent crimes in the United States, including violent crimes motivated by bias, Federal jurisdiction over certain violent crimes motivated by bias is necessary to supplement State and local jurisdiction and ensure that justice is achieved in each case; (10) Federal jurisdiction over certain violent crimes motivated by bias enables Federal, State, and local authorities to work together as partners in the investigation and prosecution of such crimes; and (11) the problem of hate crime is sufficiently serious, widespread, and interstate in nature as to warrant Federal assistance to States and local jurisdictions. 

SEC. 3. DEFINITION OF HATE CRIME. In this Act, the term "hate crime" has the same meaning as in section 280003(a) of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C. 994 note). 

SEC. 4. PROHIBITION OF CERTAIN ACTS OF VIOLENCE. Section 245 of title 18, United States Code, is amended-- (1) by redesignating subsections (c) and (d) as subsections (d) and (e), respectively; and (2) by inserting after subsection (b) the following: "(c)(1) Whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person-- "(A) shall be imprisoned not more than 10 years, or fined in accordance with this title, or both; and "(B) shall be imprisoned for any term of years or for life, or fined in accordance with this title, or both if-- "(i) death results from the acts committed in violation of this paragraph; or "(ii) the acts omitted in violation of this paragraph include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill. "(2)(A) Whoever, whether or not acting under color of law, in any circumstance described in subparagraph (B), willfully causes bodily injury to any person or, through the use of fire, a firearm, or an explosive device, attempts to cause bodily injury to any person, because of the actual or perceived religion, gender, sexual orientation, or disability of any person-- "(i) shall be imprisoned not more than 10 years, or fined in accordance with this title, or both; and "(ii) shall be imprisoned for any term of years or for life, or fined in accordance with this title, or both, if-- "(I) death results from the acts committed in violation of this paragraph; or "(II) the acts committed in violation of this paragraph include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill. "(B) For purposes of subparagraph (A), the circumstances described in this subparagraph are that-- "(i) in connection with the offense, the defendant or the victim travels in interstate or foreign commerce, uses a facility or instrumentality of interstate or foreign commerce, or engages in any activity affecting interstate or foreign commerce; or "(ii) the offense is in or affects interstate or foreign commerce.". 

SEC. 5. DUTIES OF FEDERAL SENTENCING COMMISSION.
(a) Amendment of Federal Sentencing Guidelines.--Pursuant to its authority under section 994 of title 28, United States Code, the United States Sentencing Commission shall study the issue of adult recruitment of juveniles to commit hate crimes and shall, if appropriate, amend the Federal sentencing guidelines to provide sentencing enhancements (in addition to the sentencing enhancement provided for the use of a minor during the commission of an offense) for adult defendants who recruit juveniles to assist in the commission of hate crimes. (b) Consistency With Other Guidelines.--In carrying out this section, the United States Sentencing Commission shall-- (1) ensure that there is reasonable consistency with other Federal sentencing guidelines; and (2) avoid duplicative punishments for substantially the same offense. 

SEC. 6. GRANT PROGRAM. (a) Authority to Make Grants.--The Office of Justice Programs of the Department of Justice shall make grants, in accordance with such regulations as the Attorney General may prescribe, to State and local programs designed to combat hate crimes committed by juveniles, including programs to train local law enforcement officers in investigating, prosecuting, and preventing hate crimes. (b) Authorization of Appropriations.--There are authorized to be appropriated such sums as may be necessary to carry out this section. 

SEC. 7. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO ASSIST STATE AND LOCAL LAW ENFORCEMENT. There are authorized to be appropriated to the Department of the Treasury and the Department of Justice, including the Community Relations Service, for fiscal years 2000, 2001 and 2002 such sums as are necessary to increase the number of personnel to prevent and respond to alleged violations of section 245 of title 18, United States Code (as amended by this Act). 

SEC. 8. SEVERABILITY. If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be unconstitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.

Summary of the Hate Crimes Prevention Act of 1999 

The Hate Crimes Prevention Act of 1999 creates a three-tiered system for the federal prosecution of hate crimes under 18 U.S.C. Sec. 245, as follows: 

1. The bill leaves 18 U.S.C. Sec. 245(b)(2) unchanged. That provision prohibits the intentional interference, or attempted interference, with a person's participation in one of six specifically enumerated "federally protected activities" on the basis of the person's race, color, religion, or national origin. These activities are: (A) enrolling in or attending a public school or public college; (B) participating in or enjoying a service, program, facility or activity provided or administered by any state or local government; (C) applying for or enjoying employment; (D) serving in a state court as a grand or petit juror; (E) traveling in or using a facility of interstate commerce; and (F) enjoying the goods or services of certain places of public accommodation. 

2. The bill adds a new provision, 18 U.S.C. Sec. 245(c)(1), which prohibits the intentional infliction of bodily injury on the basis of race, color, religion, or national origin. This new provision does not require a showing that the defendant committed the offense because of the victim's participation in a federally protected activity. However, an offense under the new 18 U.S.C. Sec. 245(c)(1) will be prosecuted as a felony only, and a showing of bodily injury or death or of an attempt to cause bodily injury or death through the use of fire, a firearm, or an explosive device is required. Other attempts will not constitute offenses under this section. 

3. The bill adds another new provision, 18 U.S.C. Sec. 245(c)(2), which prohibits the intentional infliction of bodily injury or death (or an attempt to inflict bodily injury or death) through the use of fire, a firearm, or an explosive device on the basis of religion, gender, sexual orientation, or disability. Like 18 U.S.C. Sec. 245(c)(1), this provision authorizes the prosecution of felonies only, and excludes most attempts, while omitting the "federally protected activity" requirement. Unlike 18 U.S.C. Sec. 245(c)(1), this provision requires proof of a Commerce Clause nexus as an element of the offense. 

4. For prosecutions under both of the new provisions, a certification by the Attorney General or other senior Justice Department official that "a prosecution by the United States is in the public interest and necessary to secure substantial justice." 

FEDERALIZATION 

It is expected that the Hate Crimes Prevention Act of 1999 will result in only a modest increase in the number of hate crimes prosecutions brought by the federal government. The intent is to ensure that the federal government will limit its prosecutions of hate crimes to cases that implicate the greatest federal interest and present a clear need for federal intervention. The Act is not intended, for example, to federalize all rapes or all acts of domestic violence. The bill requires a nexus to interstate commerce for hate crimes based on sexual orientation, gender, or disability. This requirement, which the government must prove beyond a reasonable doubt as an element of the offense, will limit federal jurisdiction in these categories to cases that involve clear federal interests. The bill excludes misdemeanors and limits federal hate crimes based on sexual orientation, gender, or disability to those involving bodily injury or death (and a limited set of attempts to cause bodily injury or death). These limitations will limit federal cases to truly serious offenses. 18 U.S.C. Sec. 245 already requires a written certification by the Attorney General, the Deputy Attorney General, the Associate Attorney General, or a specially designated Assistant Attorney General that "a prosecution by the United States is in the public interest and necessary to secure substantial justice." This requirement will apply to the new crimes in the Act. 

EXISTING FEDERAL LAW AND THE NEED FOR EXPANDED JURISDICTION 

1. The "Federally Protected Activity" requirement of 18 U.S.C. Sec. 245(b)(2) 18 U.S.C. Sec. 245(b)(2) has been the principal federal hate crimes statute for many years. It prohibits the use of force, or threat of force, to injure, intimidate, or interfere with (or to attempt to injure, intimidate, or interfere with) "any person because of his race, color, religion, or national origin" and because of his participation in any of six "federally protected activities" specifically enumerated in the statute. The six enumerated "federally protected activities" are: (A) enrolling in or attending a public school or public college; (B) participating in or enjoying a service, program, facility or activity provided or administered by any state or local government; (C) applying for or enjoying employment; (D) serving in a state court as a grand or petit juror; (E) traveling in or using a facility of interstate commerce; and (F) enjoying the goods or services of certain places of public accommodation. Federal jurisdiction exists under 18 U.S.C. Sec. 245(b)(2) only if a crime motivated by racial, ethnic, or religious hatred has been committed with the intent to interfere with the victim's participation in one or more of the six federally protected activities. Even in the most blatant cases of racial, ethnic, or religious violence, no federal jurisdiction exists under this section unless the federally protected activity requirement is satisfied. This requirement has limited the ability of federal law enforcement officials to work with state and local officials in the investigation and prosecution of many incidents of brutal, hate-motivated violence and has led to acquittals in several cases in which the Department of Justice has found a need to assert federal jurisdiction. The most important benefit of concurrent state and federal criminal jurisdiction is the ability of state and federal law enforcement officials to work together as partners in the investigation and prosecution of serious hate crimes. When federal jurisdiction has existed in the limited contexts authorized by 18 U.S.C. Sec. 245(b)(2), the federal government's resources, forensic expertise, and experience in the identification and proof of hate- based motivations often have provided a valuable investigative assistance to local investigators. By working cooperatively, state and federal law enforcement officials have the best chance of bringing the perpetrators of hate crimes swiftly to justice. The work of the National Church Arson Task Force is a useful precedent. Created in 1996 to address the rash of church arsons across the country, the Task Force's federal prosecutors and investigators from ATF and the FBI have collaborated with state and local officials in the investigation of every church arson since then. The results of these state-federal partnerships have been impressive. Thirty-four percent of the joint state-federal church arson investigations conducted by the Task Force resulted in arrests of one or more suspects on state or federal charges. This arrest rate is more than double the normal 16 percent arrest rate in all arson cases nationwide, most of which are investigated by local officials without federal assistance. More than 80 percent of the suspects in joint state-federal church arson investigations by the Task Force have been prosecuted in state court under state law. 

2. Violent hate crimes based on sexual orientation, gender, or disability Current federal law does not prohibit hate crimes based on the victim's sexual orientation, gender, or disability. 

  a. Sexual Orientation Statistics gathered by the federal government and private organizations indicate that a significant number of hate crimes based on the sexual orientation of the victim are committed every year in the United States. Data collected by the FBI pursuant to the Hate Crimes Statistics Act indicate that 1,102 bias incidents based on the sexual orientation of the victim were reported to local law enforcement agencies in 1997; that 1,256 such incidents were reported in 1996; and 1,019 and 677 such incidents were reported in 1995 and 1994, respectively. The National Coalition of Anti-Violence Programs (NCAVP), a private organization that tracks bias incidents based on sexual orientation, reported 2,445 such incidents in 1997; 2,529 in 1996; 2,395 in 1995; and 2,064 in 1994. Even the higher statistics reported by NCAVP may significantly understate the number of hate crimes based on sexual orientation actually committed in this country. Many victims of anti-lesbian and anti-gay incidents do not report the crimes to local law enforcement officials because they fear a hostile response or mistreatment. According to the NCAVP survey, 12% of those who reported hate crimes based on sexual orientation to the police in 1996 stated that the police response was verbally or physically abusive. 

  b. Gender Although acts of violence committed against women traditionally have been viewed as "personal attacks" rather than as hate crimes, a significant number of women are exposed to terror, brutality, serious injury, and even death because of their gender. In the enactment of the Violence Against Women Act (VAWA) in 1994, Congress recognized that some violent assaults committed against women are bias crimes rather than mere "random" attacks. The Senate Report on VAWA, which created a federal civil cause of action for victims of gender-based hate crimes, stated: "The Violence Against Women Act aims to consider gender-motivated bias crimes as seriously as other bias crimes. Whether the attack is motivated by racial bias, ethnic bias, or gender bias, the results are often the same. The victims are reduced to symbols of hatred; they are chosen not because of who they are as individuals but because of their class status. The violence not only wounds physically, it degrades and terrorizes, instilling fear and inhibiting the lives of all those similarly situated. 'Placing this violence in the context of the civil rights laws recognizes it for what it is--a hate crime.' " Senate Repot No. 103-138 (1993) (quoting testimony of Prof. Burt Neuborne.) The majority of states do not specifically prohibit gender-based hate crimes. All 50 states have statutes prohibiting rape and other crimes typically committed against women, but only 17 states have hate crimes statutes that include gender among the categories of prohibited bias motives. The federal government should have jurisdiction to work with state and local law enforcement officials in the investigation of violent gender-based hate crimes and, where appropriate in rare circumstances, to bring federal prosecutions to vindicate the strong federal interest in combating the serious gender-based hate crimes of violence. Enactment of the Hate Crimes Prevention Act will not result in the federalization of all rapes, other sexual assaults, or acts of domestic violence. The intent is to ensure that the federal government's investigations and prosecutions of gender-based hate crimes will be strictly limited to the most flagrant cases. 

  c. Disability Congress has shown a consistent commitment over the past decade to the protection of persons with disabilities from discrimination. In amendments to the Fair Housing Act in 1988, and the Americans With Disabilities Act in 1990, Congress extended protections to persons with disabilities in many traditional civil rights contexts. The Hate Crimes Prevention Act is a measured response to a critical problem facing the Nation. It will make the federal government a full partner in the battle against hate crimes. In recognition of State and local efforts, the Act also provides grants to states and local governments to combat hate crimes, including programs to train local law enforcement officers in investigating, prosecuting and preventing hate crimes.