Panel II of a Hearing of the Senate Judiciary Committee - The Matthew Shepard Hate Crimes Prevention Act of 2009


Date: June 25, 2009
Location: Washington, DC

Chaired By: Senator Patrick Leahy

Witnesses: Janet Langhart Cohen, Author; Wife of Former Secretary of Defense William Cohen; Mark Achtemeier, Associate Professor of Systematic Theology, University of Dubuque Theological Seminary; Gail Heriot, Commissioner, United States Commission on Civil Rights, Professor of Law, University of California at San Diego; Brian Walsh, Senior Legal Research Fellow, Center for Legal and Judicial Studies, The Heritage Foundation; Michael Lieberman, Washington Counsel, Anti-Defamation League, Co-Chair, Leadership Conference on Civil Rights, Hate Crimes Task Force

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SEN. SESSIONS: Mr. Chairman, as they're gathering I think I'm going to need to run to the Armed Services Committee, which is having its final mark-up of the Armed Services Bill. I'll try to get right back as soon as I can. And I apologize to the panelists if I miss some of your testimony; it's just one of those things that I happen to miss -- particularly that I need to be at. I've missed most of it already.

SEN. LEAHY: And I know how busy everybody is, that's why I rescheduled to start it at our normal mark up time to -- I appreciate the amount of time Senator Sessions you have spent here.

SEN. SESSIONS: And Mr. Chairman I would offer Senator Hatch's statement for the record.

SEN. LEAHY: Of course. And we will keep the record open to the close of business this week for anybody's statement.

Our next witness is Janet Langhart Cohen --

SEN. SESSIONS: Maybe she'll forgive me if I go to Armed Services since Senator Cohen was --

MS. COHEN: (Off mike.)

SEN. SESSIONS: -- so well, yes.

SEN. LEAHY: She's an accomplished journalist, author, playwright, she's one of our nation's most thoughtful voices on race in America as I indicated earlier. And she's a dear friend of both my wife's and mine.

She's the author of "From Rage to Reason: My Life in Two Americas", the co-author of "Love in Black and White" which she wrote with her husband, former Republican Senator and Secretary of Defense, William Cohen, both books that we have and treasure. And I understand that two weeks ago her play, "Ann and Emit" was set to debut at the Holocaust Museum. Her husband was inside checking out where there was going to be when the shots rang out, killing security guard Stephen Johns. Ms. Cohen -- so I appreciate so much having you here. Please go ahead.

MS. COHEN: Thank you very much -- (off mike) -- Senator Ted Kennedy is not here, he is sorely missed. He's been a great champion on social justice and civil rights.

I am also sorry that I've been asked to speak about hate today. Hate in our society. Seems I know a lot about hate, I'm almost an expert on it. A trail of hate has followed me my entire life. I was born into hate. In 1941, my father, when I was an infant, was sent to Europe to fight the Nazis, to fight hate, only to return home to fight more hate among his fellow citizens, the Klan and racism.

My mother told me when I was 7 years old we had a cousin in our family who had been lynched. She also told me that there were people in this country who won't like me because of my color, but I must never or judge people because of something they can't help, and I have kept that promise.

At 14 years old, when I was deciding what high school I was going to go to since the Supreme Court decision of 1954 said I was equal and that I could go to any school I wanted, word came up from Money, Mississippi that a young black boy the same age as I had been brutally murdered for whistling at a white woman. That scared our community and it gave me the idea of what my country thought of me as a person of color because the men who brutally murdered Emit Till got away with it.

And if that wasn't enough, as an adult, a dear friend and mentor was assassinated. Dr. Martin Luther King, Jr. was my friend and mentor, and it was hate that murdered him. And if you think these stories or hate are somewhere in our dark past or a relic of our history, I only have to take you back two weeks ago when at the Holocaust Museum we had a tragic shooting. A white racist went into the Jewish shrine and killed a black man, Officer Stephen Tyrone Johns. My husband, as Senator Leahy just said, was only 30 feet away from the murder. And the cruel irony is is that my play, "Ann and Emit," a play about hate, was to debut in the museum just hours later. "Ann and Emit" is a one-act play, an imaginary conversation between Ann Frank and Emit Till, two tragic victims of hate whose societies allowed them to be murdered. In the play, Ann and Emit explore the commonalities of their disparate oppressors, the tactics they used to murder them. These two teens lived in societies that allowed them to be murdered and there was no justice. The cruel irony is that drama within a drama, that this white racist would come in and with a single shot to the heart of Officer Johns, bring back memories of Adolf Hitler and Jim Crow. It was as though they had come back to life.

I implore this committee to pass this legislation because of us who are vulnerable, I am one of them. Those of us who are vulnerable because of our race, our color, our national origin, our gender identity, our sexual orientation, our disability, and our physical challenges. We need to pass legislation that will empower our attorney general, his prosecutors, their state and local partners to enforce a law that will take care of all of us. We need this protection. We deserve this justice.

My play is a call to action to ask society what I'm asking this morning is to not be silent by standers or innocent victims watching on, but to do something, to do something, to act. And I feel passing this legislation will protect those of us who need it and give us the justice we deserve.

Thank you very much.

SEN. LEAHY: Thank you very, very much. It's powerful testimony and it's testimony that should be heard. And I appreciate especially the fact that when you say these were not things of a distant past, but something we all look at and things that we think about with our children and our grandchildren.

MS. COHEN: Thank you.

SEN. LEAHY: Reverend Dr. Mark Achtemeier is an associate professor of systematic theology at the University of Dubuque in Iowa. He's co-authored two books on Christian faith and church renewal. He is a former pastor of the Windermere Presbyterian -- did I pronounce that correctly? Thank you -- Presbyterian Church in Wilmington, North Carolina and earned doctor. I'm going to turn the gavel over to Senator Cardin and I'll be back as soon as I can. Thank you.

REV. ACHTEMEIER: Thank you, Senator Leahy, honorable members of the committee. I come before you as an evangelical Christian and ordained minister in the Presbyterian Church USA to ask you to pass the Matthew Shepard Hate Crimes Prevention Act.

Christians affirm along with many other faith traditions that every single human being is created in the image of God. That means each person is entitled to the fundamental rights and dignity that go with being an image of the Almighty and a member of the one human family. In this area, Christian teaching resonates with the dream that is America.

Our Declaration of Independence states that all men are created equal, endowed by their Creator with certain unalienable rights.

Our forbearers in this country understood what Christianity also affirmed, that people's ability to live out their calling requires respect for their fundamental rights and freedoms. The protections of a lawful society provide us with the secure space necessary to develop our full human potential, to grow in love for our neighbors and to offer our gifts for the good of all. That space of freedom in which lives can flourish disappears when people are subject to physical attack or live in constant fear for their safety.

This is one area where the church needs the government's help in order to do its work. We need you to create for us and all citizens that safe space of freedom in which we can help people embrace the love and goodness that is their calling as children of God.

As the name on this bill testifies, that safe space has been tragically lacking for our lesbian, gay, bisexual and transgender brothers and sisters. In 2007 alone, 1,265 hate crime incidents based on sexual orientation were recorded by the FBI. Though we already have laws to protect people from violent assaults, the truth is that in areas where particular minority groups are widely disapproved, justice sometimes bends in response to local prejudices or has too few resources to make an effective stand. In such cases, we need the help of our federal law enforcement system provided by this bill in order to make real that American promise of life, liberty and the pursuit of happiness for all our citizens.

This bill not only benefits the LGBT community, it also promotes religious liberty by expanding and updating federal protection against violent crime committed because of a person's religion. That is all the more reason why so many religious bodies have been eager to support the bill. I've attached to my testimony a letter of endorsement signed by my own church and a host of others representing a broad range of faith traditions.

Now some have worried that this act would function to outlaw the sincere religious beliefs of Americans who believe that homosexuality is contrary to God's will. Let me say that if I thought for one minute this bill would limit anyone's religious faith, expression or observance, I wouldn't touch it with a 10-foot pole. But that is not what the bill does. Section X explicitly reaffirms that our religious freedoms are fully protected under the Constitution.

The Matthew Shepard Act targets not thought, not speech but physical assault and violent acts on another person are not a legitimate expression of anyone' religion, Christian or otherwise. There's nothing in this Act for law abiding Christians to fear.

In fact, we need this bill for the health of our churches, our mosques and our synagogues. In my own church, good Bible-believing Presbyterians are split right down the middle on questions surrounding homosexuality, and like many religious bodies, we are engaged in vigorous debate, working to find our way to God's truth together. But we can't have the debate we need when some people fear being assaulted in a dark alley if they're honest about what they think and who they are in church. We need the protections that the Matthew Shepard Act provides.

So for the sake of my church's health, for the sake of this country's promise to all its citizens, I urge you to do the right thing and pass this legislation.

Thank you very much.

SEN. BEN CARDIN (D-MD): And thank you very much for your testimony. We'll now hear from Gail Heriot who is a professor of law at the University of San Diego where she teaches torts and civil rights law. She's also one of several commissioners on the United States Commission on Civil Rights. Professor Heriot is also former counsel to Senator Hatch of this committee.

MS. HERIOT: Thank you for the opportunity to appear before the Senate Committee on the Judiciary. I'm Gail Heriot, a member of the U.S. Commission on Civil Rights. Several weeks ago, the commission voted to send a letter to members of the Senate leadership opposing Senate Bill 909. I'm here to elaborate on my reasons as an individual commissioner for joining in that letter, which was signed by six of the eight members of the commission.

Americans were horrified by the brutal murders of James Byrd and Matthew Shepard a decade ago. More recently, the murders of Angie Zapata and Stephen Johns have shocked and saddened us all. There ought to be a law, some people have said, preferably a federal one.

Of course, there is a law. Murder is a serious crime everywhere, regardless of its motive, and it has been since the advent of our civilization. Indeed, all but a tiny number of states have additional special hate crime statutes. To my knowledge, no one has actual evidence that state or local authorities have been neglecting their duty to enforce the law.

Matthew Shepard's tormentors are now serving life sentences. James Byrd's are on death row, awaiting execution. A Colorado jury recently convicted Zapata's killer of murder and the same will almost certainly happen to James Von Braun if he lives long enough to be prosecuted and is found competent to stand trial.

Unfortunately tragedies like these biased inspired murders quickly become an opportunity for political grandstanding. The proposed federal hate crimes legislation, however, which is being touted as a response to these murders, shouldn't be treated as a mere photo opportunity. It's 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.

All hate crimes, even those that have been adopted at the state level, raise significant issues. Why for example should Matthew Shepard's killers be treated differently from Jeffrey Dahmer or Ted Kaczynski? Hate crimes are surely horrible, but there are other horrible crimes as well.

What happens if hate crime statutes aren't enforced even- handedly? Some crime statistics show that an African-American is more likely to commit a racially-inspired murder of a white man or a white woman than the other way around. Should all be punished as hate crimes, or just those that fit the skinhead stereotype? Will hate crime statutes really make women and minorities feel that the law takes their safety seriously or might they have just the opposite effect?

Sooner or later, a high-profile crime will occur in which some citizens strongly believe ought to be prosecuted as a hate crime. Rightly or wrongly, the prosecution will decline to prosecute it on that way or the jury will fail to convict on that particular charge. As a result, citizens will wind up feeling cheated in some way when they might have felt completely vindicated had no hate crime statute ever existed.

Americans may disagree in good faith on whether such laws will, in the end, help or hurt harmony in the community. The proposed federal hate crimes legislation, however, has special problems of overreach with implications for federalism and double jeopardy protections. These problems should cause even those who favor state hate crime statutes to question the desirability of a federal statute.

We at the U.S. Commission on Civil Rights believe that this bill will do little good and a great deal of harm. Its most important effect will be to allow federal authorities to re-prosecute 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 prosecutions by dual sovereigns, such double prosecutions are technically 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 proportion of crimes are now both state and federal offenses. We on the commission regard the broad federalization of crime as a menace to civil liberties. There's no better place to draw the line on that process than with a bill that purports to protect civil rights.

While the title of the Matthew Shepard Hate Crimes Prevention Act 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, and I'm quoting here, "because of someone's actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability."

But consider -- rapists are seldom indifferent to the gender of their victims. They are virtually always chosen because of their gender, among other things. A robber may well steal only from the disabled because in general the disabled are less able to defend themselves. Literally, they are chosen because of their disability.

Or suppose a burglar is surprised when the wife and husband return to the home earlier than expected. The burglar shoots the husband and kills him, but finding himself unable to shoot a woman, turns and runs. Again, literally, the husband was killed because of his gender. No one can deny the horror of violent crimes inspired by hatred of any kind. This is something upon which all decent people can agree.

But it is precisely in these situations where all decent people agree on the need to do something that mistakes are often made.

Passage of this vaguely-worded prohibition would be a giant step towards the federalization of all crime. Given the many civil liberties issues that it would raise, including the routine potential for double jeopardy prosecutions, it is a step that the members of the Senate should think twice before they take.

SEN. CARDIN: Thank you for your testimony. We'll now hear from Brian Walsh. Brian Walsh is the senior legal research fellow at the Heritage Foundation Center for Legal and Judicial Studies. He has worked with the Department of Homeland Security and is a former associate at the law firm of Kirkland & Ellis. It's a pleasure to have you here, Mr. Walsh.

MR. WALSH: Thank you, Senator Cardin. I want to thank Chairman Leahy, Ranking Member Sessions, and members of the committee for this opportunity to address the Matthew Shepard Hate Crimes Prevention Act of 2009 and focusing on the two main criminal provisions in Section VII.

Along with my Heritage Foundation colleague, former U.S. Attorney General Ed Meese, I direct our projects on criminal justice reform and over criminalization, but I speak only on behalf of myself here today. Over the past few years, I have worked with dozens of members of Congress, scores of advocacy organizations, and hundreds of individuals across the ideological and political spectrums to build support for principled, non-partisan criminal law reform.

I've written extensively and testified in the House of Representatives about problems that are very similar to the problems with this bill and gang crime legislation that over-federalized crime that had -- ordinary street crime and would have made much ordinary street crime a federal crime if it had allegedly involved gang members.

Although I recognize that the members of Congress who support the HCPA are well-intentioned and that much effort has gone into trying to make its criminal provisions acceptable to federal law enforcement officials, among others, nevertheless, the so-called hate crimes provisions are precisely the type of criminal laws that we have been working to eliminate. They are flatly unconstitutional, almost wholly unwarranted and highly prone to abuse and injustice.

Compounding the problem and as is typical of the dynamics that lead to over-criminalization, the legislation is wildly popular with the media. The hate crimes provisions in Section VII are unconstitutional because the federal government is a government of limited enumerated powers, and the American people never granted the federal government a general or plenary police power it could use to control the type of violent crimes covered by the offenses. The Supreme Court in 1996 and again in 2000 struck down federal laws controlling remarkably similar crimes because Congress did not have the power to control them.

The court made it plain that Congress does not have countless power to control violent non-economic crimes like those covered by the HCPA's two hate crimes offenses. The HCPA also suggests that Congress might have a power under one of the Civil War amendments to grant federal law enforcement control over this violent non-economic crime. But the Supreme Court reaffirmed in the Morrison case in 2000 that the 14th Amendment enforcement power applies only to state action -- that is, government action -- whereas the HCPA's hate crimes offenses cover violent crime covered (sic) by individuals who do not act, quote, "under color of law."

The constitutional restrictions on Congress' power to criminalize are no mere theoretical niceties. Like most constitutional restrictions, they protect individual rights. The case of NFL quarterback Michael Vick provides one recent illustration of this problem. For his dogfighting offenses, Vick had to face prosecution by both the Justice Department as well as a state prosecution in Virginia. The burden of defending double prosecutions makes it far less likely that an accused person will be able to exercise his constitutional right to trial by jury.

If I can quote from the Supreme Court in Miller v. United States, 1958, "However much in a particular case insistence upon constitutional standards may appear as a technicality that inures to the benefit of a guilty person, the history of the criminal law proves the tolerance of shortcut methods in law enforcement impairs its enduring effectiveness." These offenses are prone to abuse and injustice because the language used to define them is overly broad and amorphous. First, the offenses do not require a person charged under them to have been motivated by hatred toward the victim, toward the racial, gender, or other group to which the victim belonged, or toward any other person.

These crimes do not require hate and it is, at best, misleading to call them hate crimes. I don't believe that this is an oversight, for I said in my written statement leading scholars who talk about the elimination of the hate motivation from bias crimes, and I'm happy to provide additional information about that scholarship.

Second, the two attempts -- the two offenses attempt to transform ordinary acts of violence into federal crimes if they are committed because of the actual or perceived race, color, sexual orientation, disability, religion, national origin, gender, or gender identity of any person. In other words, it would be a federal offense even if the defendant acted because of his own, for example, gender or gender identity, or if the crime was somehow caused by the religion of a third person.

In sum, the best way I can put it is that the HCPA would make every violent crime a federal crime if it was in some way related to someone else's membership in one of the favored groups. This is an exceedingly broad scope and it would lead to selective enforcement of the HCPA. The federal government currently conducts only 1 percent of the arrests made each year throughout the nation and has nowhere near the resources necessary to investigate and prosecute every violent crime that could be deemed a hate crime under the HCPA.

Selective enforcement of an exceedingly broad law is generally impossible to distinguish from the politically-motivated prosecution. Such laws undermine our criminal justice system by undermining Americans' confidence in the fairness of our criminal justice system. The destructive effect is compounded as is illustrated in the debate over this bill when the overly-broad law purports to grant greater protections against violent crime to some Americans than to others.

Finally, as it has been noted, not only is it the states' job to control ordinary crime, the underlying conduct that the HCPA would make federal, quote, "hate crimes" has always been criminalized in all of the 50 states. Forty-five states already have criminal statutes imposing harsher penalties for crimes that are motivated by bias, and the benefits and problems resulting from those statutes remain to be proven. But the overwhelming trend in the states has been to increase the number and scope of hate crime statutes.

In sum, the constitutional flaws alone undermine the validity of HCPA's proposed hate crimes offenses but they are also invitations to abuse and unneeded by the states to fulfill their core responsibility of controlling local crime. Thank you again, Mr. Chairman, and I look forward to answering the members' questions.

SEN. CARDIN: Thank you, Mr. Walsh. Our final witness on this panel is Michael Lieberman. Michael Lieberman is the Washington counsel for the Anti-Defamation League, one of the nation's primary civil rights and human rights organizations dedicated to combating hate, anti-Semitism, and other forms of bigotry. He's also co-chair of the Leadership Conference on Civil Rights Hate Crime Task Force that recently issued a report entitled, "Confronting the New Face of Hate: Hate Crimes in America 2009." Mr. Lieberman?

MR. LIEBERMAN: Good morning, Mr. Chairman, Ranking Member Sessions. I'm Michael Lieberman, the Washington counsel for the Anti- Defamation League and co-chair of the Leadership Conference on Civil Rights Hate Crime Task Force. We really appreciate the committee's attention to this issue today. I'm pleased to represent ADL and LCCR on this panel.

We support the Matthew Shepard Hate Crime (sic) Prevention Act, and this is notable because it's rare for a coalition of civil rights, education, and religious organizations to support expanded federal criminal authority. Groups like the LCCR, the NAACP, Human Rights First, and the American Association of University Women -- all members of the Hate Crimes Coalition -- do not usually come before you to advocate for expanded federal police powers. It's even more extraordinary that we do so today hand in hand with the International Association of Chiefs of Police and the National District Attorneys Association and virtually every other major law enforcement organization in the country.

Violent hate crimes have a special impact on the victim and their communities. They merit special attention and they receive it. For example, the FBI has been the nation's repository for crime statistics since 1930. They publish an annual report called "Crime in the United States", and every year the FBI disaggregates that data and publishes two, exactly two, separate reports on crime issues that they believe impact Americans dramatically.

One of those reports is about law enforcement officers killed in the line of duty -- obviously, a matter of great concern. And the other report is about hate crimes in America, recognizing their importance and their impact. In 2007, the most recent data available, the FBI documented 7,624 hate crimes, as you heard -- almost one hate crime every hour of every day. Hate crimes against Hispanics have increased in each of the past four years, and the number of sexual orientation hate crimes rose to its highest level in five years.

We support S. 909 because we see a disturbing prevalence of hate violence in America, an inadequate patchwork of state hate crime laws, and deficiencies in existing federal criminal civil rights laws. State and local law enforcement authorities prosecute the overwhelming majority of hate crime cases and will continue to do so after this legislation is enacted. Federal authority has been used very rarely.

But those cases are really important and demonstrate our nation's commitment to confront the very worst violent hate crimes, like the murder of Yankel Rosenbaum in the Crown Heights section of Brooklyn in 1991, in cases that involve organized hate groups and neo-Nazi skinheads, and the recent successful prosecution of Latino gang members in Los Angeles who had hunted African Americans as a gang initiation rite.

The legislation before you is narrow, measured, modest, and constitutionally sound. It complements and fills gaps in the patchwork of existing state laws. Yes, 45 states and the District of Columbia have hate crime laws but only 30 states and the District include sexual orientation. Only 26 states and the District include gender. Only 12 states and the District include gender identity, and only 30 states and the District include disability.

We know that bigotry cannot be legislated out of existence. A new federal law that finally addresses all victims of hate crimes will not eliminate them. But federal involvement in select cases where state and local officials cannot or will not act and expanded federal partnerships with state and local officials will result in more effective response to these crimes. A new LCCR education fund report attached as Appendix A describes a number of very disturbing trends and further underscores the need for this legislation.

The report documents increased hate group recruitment after the election of our first African-American president and an increase in demonizing, hateful rhetoric against Hispanics, immigrants, and those who look like immigrants. The shooting at the U.S. Holocaust Memorial Museum earlier this month reminds us, as the museum itself does every day, where the spread of hate can lead. We urge you to enact this essential legislation to equip federal, state, and local law enforcement officials with the very best tools to confront this national problem.

Thank you.

SEN. CARDIN: Well, let me thank each of you for your testimony here today.

I want to start with Mrs. Heriot, if I might. You referred to the position of the Commission on Civil Rights, a letter sent to the Congress dated April 29th, 2009 -- your letter. I'm going to ask that that be included in the record, without objection.

And then, as you've indicated, two members of the commission dissented from that position. They sent us a letter dated June 17th, 2009. I'm going to ask that that letter also be included in the record, without objection.

And I want to give you a chance to respond to what the two dissenting commissioners said, because I think their statements are pretty profound. And I just want to make sure that you have a chance to respond to that.

They basically said that you reached your conclusions without benefit of any research. "This opposition does not reflect a study position backed by the agency's research." And it goes on to say, "The commission's national staff has done no fact-finding into the extent or damage of hate crimes in recent years."

Do you care to respond? Has there been -- was there research done? Did you have statistical information? Did you do any recent fact-finding before reaching your conclusions?

MS. HERIOT: (Off mike.) Quite a lot of research went into this. I'm not certain what caused Commissioner Melendez and Yaki to think otherwise; that, in fact, the members of the commission have made a study of hate crimes.

SEN. CARDIN: Could you make available to this committee a copy of --

MS. HERIOT: My testimony is based on some of the research that was done.

SEN. CARDIN: No, could you --

MS. HERIOT: This was research done by me.

SEN. CARDIN: Could you make available to the committee the research done by the staff at the United States Commission on Civil Rights in background for making --

MS. HERIOT: As a member of the commission, I did that research. Also other members of the commission are quite knowledgeable about --

SEN. CARDIN: Is it documented? Do we have -- is there material --

MS. HERIOT: My testimony is the product of that research.

SEN. CARDIN: Was your testimony made available to the commission before it acted?

MS. HERIOT: It was made available to people who wanted to read it.

SEN. CARDIN: Before the commission took action?

MS. HERIOT: I know that many members of the commission were aware of what I had done already --

SEN. CARDIN: Your testimony -- your testimony, I believe, is -- let me take a look at it here -- as I understand your testimony in preparation for today's hearing, that was prepared then last April? Am I getting the dates right here?

MS. HERIOT: I wrote it back -- I wrote the document that that's based on. It's gone through several different kinds of versions.

SEN. CARDIN: My question to you is --

MS. HERIOT: This actually was written, I think, back in November and December, mostly.

SEN. CARDIN: If there was a document made available to the commission, if there was research done by the staff of the commission, if you would make that available to the committee, we would certainly appreciate it, because it's our understanding that there was not staff research done. And we appreciate your energy as a commission member; that's important. We want to know whether the commission staff did research --

MS. HERIOT: The commission staff doesn't direct the commission, of course. The commission directs the staff. And so when members of the commission do their own research, there's nothing wrong with that, Senator. In fact, I would think it's a good thing.

SEN. CARDIN: No, I understand that. I'd just point out that your testimony is dated June 25th, today's date. We don't have the benefit of the documents that were made available by research by either the commissioners or by the staff. Look, you may be unique. I do a little bit of my own research too, but I do rely upon our staff to get --

MS. HERIOT: I do a lot of my own research. I'm a professor of law.

SEN. CARDIN: You're a former staffer here; I understand that.


SEN. CARDIN: Let me ask you the second point that's made in this letter that is very disturbing. It says, "Unfortunately, in the name of the U.S. Commission on Civil Rights, once renowned for its bipartisanship, scholarship and presentation of hard facts, should be misused to oppose this critical legislation. We regret the agency has come to operate in such a sharply ideological manner and look forward to a time when the commission again speaks with a bipartisan voice to advance and protect civil rights."

MS. HERIOT: And you're asking me to comment on that?


MS. HERIOT: Six members of the commission agreed on this. I think that when six members of the commission believe that legislation pending before Congress is not a good idea, they should speak up. There has never been a time that the commission insists on unanimous decisions.

SEN. CARDIN: I'd point out that the --

MS. HERIOT: And (it's like ?) the Senate does not require unanimity. There are times I wish that it did, but it doesn't.

SEN. CARDIN: The commission is supposed to be evenly divided politically, but instead two of the independents -- one was a former Republican; one turned Republican -- that joined in the opinion. I just point that out, because it appears to us that it was sharply divided along a partisan basis, which is something that we want to avoid with the United States Commission on Civil Rights.

We expect you to try to do what sometimes we're unable to do in this Congress, to reach a bipartisan conclusion.

MS. HERIOT: And we make every effort to do so.

SEN. CARDIN: It appears like you did not succeed in this case.

MS. HERIOT: We did get six out of eight.

SEN. CARDIN: Senator Sessions.

SEN. SESSIONS: Thank you.

Have the chairman and vice chairman of the commission also signed?

MS. HERIOT: That's right.

SEN. SESSIONS: Well, with regard to this research, this commission has been dealing with these issues for many, many years. But I would ask maybe Mr. Walsh, are you aware of any in-depth research, as Senator Hatch has referred to for years in the Senate, that's been done to justify a need to pass this legislation based on a failure of states to enforce these laws in any significant way?

MR. WALSH: I am not, in my experiences, but most of the evidence is anecdotal, which doesn't discount the individual cases.

SEN. SESSIONS: A lot of the cases they cite -- isn't it a fact that the defendants were convicted, some given the death penalty, some given life without parole, and they're cited in a way that suggests that somehow justice didn't get done in those cases?

MR. WALSH: I think that's correct, and often misleading. Even the Holocaust Museum shooting, already the Justice Department has filed a complaint in that case that includes not necessarily an indictment, but a complaint in that case, and it indicates that murder in the first degree under federal law, 18 USC 1111, will be charged in that case. And the mandatory minimum penalty for that is death or life imprisonment. So those are in addition to the other charge that has been put in the complaint.

SEN. SESSIONS: Professor Heriot, is that --

MS. HERIOT: Heriot, yes. (Clarifies pronunciation.)

SEN. SESSIONS: I know you take these issues seriously. I know the commission does.

MS. HERIOT: I've been working on this issue back from 1998, when the first hearing was held here.

SEN. SESSIONS: Well, these are very important things, and they reflect somewhat how we think about the difficult questions of race and gender in America, and we need to do the right thing about it. But you suggest or I believe you state in your testimony that this bill is so vaguely worded that all rape cases could be covered by this statute, making a monumental change in federal law. I would say if you made every rape case prosecutable under federal law, that may be more, except for drugs, than any other crime the federal government would have jurisdiction over, perhaps.

MS. HERIOT: I'm not sure of that, but --

SEN. SESSIONS: We don't have that -- but anyway, so the question is, do you think that's a fair interpretation of the statute?

MS. HERIOT: It's very interesting. That language, that "because of" language, is so very loose. The first time I saw it, which, again, was back when I was working for the Committee on the Judiciary, I thought, "Well, a mistake has been made here. They probably didn't mean to word it quite that broadly."

And we had a few representatives of the Department of Justice come by to talk to the staff. And I mentioned to them that I thought this was worded too broadly and it needed to be cleaned up a little. And, much to my surprise, they were very much against changing the language. And when I asked them, "Do you think this will cover all rape?" I thought they would say no. But they didn't. They refused to disclaim the possibility that it would cover all rape. They evidently liked that broad interpretation --

SEN. SESSIONS: Well, let's talk about that.

MS. HERIOT: -- (inaudible).

SEN. SESSIONS: Mr. Walsh, the Heritage Foundation is a strong believer in the Constitution and classical rights of individuals. Doesn't this give, therefore, the attorney general breathtaking authority to pick and choose what crimes they want to prosecute? And in the scheme, in the history of the American legal experience, isn't it true that statutes, criminal statutes, we've always endeavored to see that they're clear and cover precisely the crime that we're talking about.

MR. WALSH: That's correct. I think, in many ways, this is -- I'll get to the core of the central problem with the statute, which is that it invites the selective prosecution. As was mentioned numerous times by the testimony by other witnesses, including the attorney general, the Justice Department would not weigh in on every case that was a hate crime. It would select which cases it would get engaged in. That is the essence of an unfair criminal statute.

SEN. SESSIONS: Isn't that contrary to the American heritage of law? Basically I remember a robbery statute is the taking of a thing of value from the person of another through force or violence or intimidation. You have to prove each one. And that's all the robbery statute is, about this long. Now isn't this one of the most broad statutes you've ever heard of in the --

MR. WALSH: It's a very broad statute. There are broad statutes throughout criminal law, but this one is exceedingly broad, and it --

SEN. SESSIONS: Or just gives the attorney general the right to pick and choose his favorite groups of the day; maybe the group that supported the attorney general or the president that appointed him. That's the kind of thing you get into when you have such a broad problem.

And Mr. Chairman, I also would ask each of these panel members if you can cite a specific case that injustice was done in the last half- dozen years. I'd like to see it, because I do think, before we do this kind of unusual legal action, that we have a basis for it based in research and documentation.

Thank you.

SEN. CARDIN: Well, thank you, Senator Sessions.

I've just got to be perfectly open about this. As I listen to Mrs. Heriot's examples, it flashes back to the days when we were trying to pass the Fair Housing Acts. I've been in legislative body for a long time, back to the 1960s. And I heard the same arguments being made to try to block just about every civil rights bill with these examples.

And this legislation is an effort to try to fill in the gaps, fill in the gaps at the national level. We have a hate crimes statute, but it's limited to where the crime can be committed and it doesn't cover those who are victims because of their sexual orientation or disability.

And I do think federal crimes should be limited to matters of national importance. I don't know of a more important subject than the principles of our nation in embracing diversity. And the trends today are concerning. So I do think this is a fundamental issue.

But I have a question for each one of the panelists, and it's a pretty simple one, following on Senator Schumer's comments about trying to understand what happens when Congress votes on this issue. And I guess my point is, what is the message to the American people if the United States Congress either passes this enhanced hate crime statute or fails to pass this hate crimes statute? Mrs. Cohen?

MS. COHEN: Well, it's a very interesting question. And not being a lawyer but a lay person, I find that -- having my husband serve on this committee and in this body, I find that you need to deliberate and debate. And, of course, when you do that, many times the weapon of delay comes, and that means denial.

I have seen cases in my own life, growing up in a black ghetto, when we'd see the police, it was a sign of being patrolled and not protected. But I also know that if you give this law to this attorney general, it will be used wisely, because of his brilliance and his integrity and because of his history.

As you well know, Senator Sessions, we needed federal laws and federal troops to go in to have this attorney general's sister-in-law integrate the University of Alabama. So when I think of police, I am of mixed blessings.

And I think of what you said, Michael Lieberman, about it is rare for people of our sensibilities to ask for law enforcement to have the federal government intervene. But you are charged to protect us, and no other help do we know. We are trusting that you will make the laws of this land to govern all of the people equally and justly.

I hope that answers your question.

SEN. CARDIN: Thank you.

Dr. Achtemeier?

MR. ACHTEMEIER: When I received the invitation to be here today, I naturally spoke with friends and family out in Iowa about the issue. And these are people from across the political spectrum, conservatives and liberals, old and young. And the universal response I got was, "How could you not be for this legislation?"

There's a clear perception of a problem, one we don't have statistical reports, but there's an awful lot in the headlines. Ordinary Iowans and relatives from around the country have a distinct sense that certain groups in our society are in more jeopardy than others and require particular protections.

And so I think if the Senate failed to pass this, the attitudes back in Iowa, at least, would be (mute ?) astonishment, wondering how the government can abandon these most vulnerable members of our society. I think it would be seen as a failure of what the government is supposed to do.

SEN. CARDIN: Mrs. Heriot?

MS. HERIOT: I'm afraid that if this legislation is passed, the ultimate message is going to be that making a political statement is more important than passing well drafted and well thought out legislation. If the legislation is not passed, what the message will be will depend on upon what members of the Senate make the message. That's what leadership is all about, explaining why a particular item of legislation should be rejected under the circumstances.

It's easy for people at home not really to know a lot about the legislation. They hear, well, it's about hate crimes. I'm against hate crimes. Well, all decent people are against hate crimes. But if you tell them about the double jeopardy issue, about various other issues that are connected to this message, then they'll get a very different message, and I think that is very much the responsibility of all members of the Senate, all members of the House and of the president of the United States.

Now, Mrs. Cohen just pointed out a moment ago something very important, and that is our present attorney general, she believes, is a very talented individual. And I have certainly no reason to disagree with that. But we don't know who the attorney general is going to be next, or the next one after that, or the one 30 attorney generals down the road. And that's why legislation is important. It has to be well drafted, well thought out, and this has not been.

SEN. CARDIN: I was just trying to get your response to whether it passes or not -- we try not to do rebuttal, but, I don't know, sometimes it's difficult. I'm tempted to -- (inaudible).

MS. HERIOT: (Inaudible) -- some point, I'm afraid.

SEN. CARDIN: You would favor the repeal of our current hate crimes, I guess the answer would probably be yes. You don't think the federal government should have a law here.

Ms. Walsh -- Dr. Walsh -- Mr. Walsh.

MR. WALSH: It's mister, thank you.


MR. WALSH: I think the -- thanks for the promotion, though, just briefly there.

The -- I think the message would be the U.S. Congress takes the Constitution very seriously, and that it -- when -- and it uses the criminal law very wisely, as -- the same way that we've criticized gang crime legislation because it would over-criminalize in that context. I think the American people, if they read this and they understood the rule of law and they adhere to the rule of law, they would understand that this is a measure that undermines that.

I, too, believe that Attorney General Holder will probably apply this in a -- in a proper manner. However, he's not the one who makes the decision in individual cases. The people who make the individual -- the decision in individual cases are individual federal prosecutors. And second is that we should not be trusting in Mr. Holder; we should be trusting in the rule of law. That's what a well tailored, narrow law does for us, one that's constitutional; it gives us the ability to look to the law itself and not to an individual and rely on them to make sure that they apply it wisely.

Again, coming back to the root concern, I think if Americans understood the law, they'd be glad to know that prosecutors will not be given a broad mandate to federalize crimes and decide that -- if they are unjustly accused of a -- of a crime of violence, that the feds might jump in and decide to prosecute it as well.

SEN. CARDIN: Mr. Lieberman, what is the message to the American people on this legislation?

MR. LIEBERMAN: Senator Cardin, I think the message when this bill is enacted into law is that these crimes matter very much to the United States government, that every hate crime victim should be protected, every hate crime victim matters. These are selective prosecutions. They are bias-motivated crimes. They are violent conduct. They cause bodily injury. They're cases where state and locals can't or won't.

I think orders of magnitude are very important here. Since 1991, there have been 129,000 hate crimes reported to the FBI and less than 170 indictments under the current statute, 18 USC 245, the parallel to what will be 18 USC 249. In no year since 1968 have there ever been more than 10 indictments under the existing statute. That is very selective but, as I mentioned in my testimony, very, very important cases that send a dramatic message to the victims and to the community that these crimes will be taken seriously by the United States government.

SEN. CARDIN: Thank you.

Senator Sessions?

SEN. SESSIONS: Thank you. Well, this is a good discussion. I think it's important.

I've been giving a lot of thought recently to the great heritage of law this nation has been blessed to have. When you travel around the world like I have -- six times to Iraq, six times to Afghanistan, the West Bank, Pakistan, places that -- and even countries that do much better still don't have anything like the magnificent rule of law that we have. And it protects everybody. And a poor person can expect and must be given their day in court.

But we are a nation of laws and not of men. That's a fundamental principle of this republic, and I think it's a good principle. I don't think that we've ever thought that it's wise to give power to the attorney general to pick and choose crimes to an extraordinary degree. If they're not being prosecuted -- if legitimate cases aren't being made, then I can understand it. So it puts me in a difficult position.

I don't want to have -- I thought I heard Senator Schumer say basically if you don't vote for this bill, you're for hate. Now, that -- I don't think he meant that. Hopefully he didn't. But I -- it kind of works -- but I don't think that's accurate. I'm not going to be put in that box. I'm not going to be intimidated. We're going to think this thing through.

If we can show -- if you can show that there's a statistical research that indicates that a serious problem exists in this country, I'm willing to talk about it. It did exist, Ms. Cohen, in the South throughout much of our history, and we have that Civil Rights Act that allowed that to happen. It was justified, as I said in my opening statement, because the facts justified that. You know the discrimination. African Americans couldn't go to certain schools. They couldn't use certain restrooms. There were other kinds of routine biases against them. Out of that was how this bill passed.

But today I'm not sure women or people with different sexual orientations face that kind of discrimination. I just don't see it. So I believe that if they are harassed or discriminated unfairly, we probably have the laws -- I believe we have the laws to fix it.

So what the question would be, is this one necessary? And I'm not sure that it is. And, matter of fact, I don't think that it is, based on what I know.

If you take these examples of crimes that -- I asked the attorney general about -- I thought about one. Let me ask you, Ms. Heriot. An individual, perhaps, let's say hypothetically, is angry that the husband left his sister alone with a bunch of children and he takes up a homosexual lifestyle which he thinks is bad and he attacks this former brother-in-law. Would that --

MS. HERIOT: I'm getting confused over the theory of relativity here.

SEN. SESSIONS: Well, the question would be, would that cover the circumstance?

MS. HERIOT: You're going to have to run the facts by me again there.

SEN. SESSIONS: Okay. The facts would be that let's say a man left his wife, his children --


SEN. SESSIONS: -- and adopted a homosexual lifestyle.


SEN. SESSIONS: And the brother of the wife -- former wife -- doesn't like this and attacks the man --

MS. HERIOT: That's --

SEN. SESSIONS: -- and states that he didn't like his lifestyle when he attacked him. Would that meet the basic standards of this case?

MS. HERIOT: That's actually a good hypothetical. I like that hypothetical. And the answer is, I think, probably a federal prosecutor could look at that case and say, yes, it's covered.

SEN. SESSIONS: Now, if the man ran off with another woman and he had the same anger in his system and he had the confrontation and attacks him, would that cover -- would that cover it?

MS. HERIOT: Try me again?

SEN. SESSIONS: If he -- if the husband -- if the husband ran off with another woman, leaving his wife and children, and the brother to avenge this attacks him, would that meet the same standards? Would that be a federal crime, potentially, also?

MS. HERIOT: If you really, really wanted to make an argument for it, yeah, you can.

SEN. SESSIONS: Mr. Walsh, I see you nod, do you agree with that?

MR. WALSH: Yeah, I think it would. And I think it's broad enough to encompass anything that is because of somebody's gender or, you know --

MS. HERIOT: Yeah. So he wouldn't have gone after him had he not been a man.

That's the trouble with this whole issue of causation, this "because of." And causation issues have been giving philosophers problems since Aristotle. It's hard. What do we mean when we say something happens "because of" something else? Well, usually things have lots of causes. Almost always, every event has a lot of causes.

Crimes are often motivated by very complex emotions and very complex needs and such. It's not very often that you run across the case of the absolutely pure hate crime; someone decides to pick someone else at random from the population for absolutely no reason other than that person's race or sex or handicap. It's very difficult to come up with real cases that are really motivated that way.

What happens is race and sex and disability and sexual orientation get put into the mix. And question is, you know, how much of the result has to be connected, or how closely must that motivation be connected to race, sex, et cetera. And, you know, this is part of it or is -- does it have to be the primary motivation?

One thing that could be done here, what might be useful, is amending this bill so that it requires that the motivation be the primary motivation. Now, that's something the Department of Justice, back when I was working for the Judiciary Committee, didn't want, but I think it would improve the bill.

MR. WALSH: Can I mention another amendment? This bill would be much different if it -- if it was limited to those acts of bodily injury that were under color of law. And really we've been talking about de jure -- you know, legalized discrimination, racial hatred, et cetera. And that's really what the 14th Amendment and 13th Amendment, 15th Amendment were put in place to address. And so we have a very clear response when there has been a(n) official act of racial segregation in this nation; it was the -- it was the Civil War amendments.

And if this -- if this statute clearly flow down to the Civil War amendments -- in other words, it derives its power from them -- if it was under law, where if it was shown that there was a widespread, systematic disregard of a state's own laws on hate crimes or a state's own law on violence, that they weren't being enforced against -- when the acts were committed against gays or they're committed against any individual, anything that shows that there's a de jure tacit approval, then this would be a different law altogether. And I think that that would make a lot more sense, because that type of discrimination is something that we've made clear in the Civil War amendments and since then -- the Civil Rights Acts as well -- that that is, you know, entirely off the board and something that the federal government can get involved in.

SEN. SESSIONS: Thank you, Mr. Chairman.

It's a good discussion, a good panel. I appreciate it very much. I think I understand the feelings that are here. And we'll have to wrestle with it.

I've got a number of statements from other members I'd offer for the record, Mr. Chairman. And I appreciate the opportunity.

SEN. CARDIN: I'll just make an observation. I couldn't disagree more with Professor Heriot's observations of what's happening in the real world. I think Mr. Lieberman's number of -- I think it was 80,000 episodes in the last decade reported indicates that we have a significant problem of people being targeted in America for violence solely because of their race, their religion, their national origin, their sexual orientation, their disability, and that this is a growing problem.

I -- look, the message -- I'm going to answer my own question. The message, when we pass this -- and I certainly hope that we will pass this -- is that America has made a priority protecting people from violence because of diversity, that diversity is embraced in America as our strength.

And I really do look forward to the day -- look, the number of prosecutions are going to be small. Your -- Mr. Lieberman's point is well taken. We don't expect there to be 80,000 prosecutions at the federal level. We expect it to be a very small number. But it's going to be meaningful and it's going to have a major impact on the attitude in America.

We've seen attitude change in this country. We've seen when it used to be acceptable to accept racial slurs in a cocktail conversation. It's no longer the case, I hope, in America today. Attitudes change. And the federal government can play a critical role in bringing about that change, and this is one more chapter in achieving that goal.

And I really do hope that if we pass this statute that there will come a time where we say, you know, this really isn't needed anymore in America. We really have a change of circumstance where violence is not targeted against a person because of their diversity. And I hope we all live long enough to see that day. We're not there today and we need help, and that's why many of us believe this is a fundamental civil rights act that needs to be passed. And we'll do everything we can to see it happen.

I certainly appreciate Senator Sessions' points. And I'm sure we will continue this dialogue.

And if there's nothing further -- here today representing the International Association of Chiefs of Police is Sergeant Kip Malcolm, Officer Brian Bennett (sp), Lieutenant Crystal Nossel (sp), and -- is there anything else I'm supposed to do before we -- (laughter) -- if not, the record will remain open for additional questions that may be presented to our witnesses and the hearing will stand adjourned.