On Wednesday, April 29, 2009, H.R. 1913 is expected to be considered on the floor under a closed rule, providing for one hour and twenty minutes of debate, and making in order one Republican Motion to Recommit.  The rule also makes in order an amendment in the nature of the substitute that is enacted with the passage of the rule.

This legislation was introduced by Rep. John Conyers (D-MI) on April 2, 2009.  The bill was referred to the House Committee on the Judiciary, which held a mark-up and reported the bill, as amended, by a vote of 15-12 on April 23, 2009.  

Definitions:  The term hate crime is defined and referenced in the bill as having the definition given in the Violent Crime Control and Law Enforcement Act of 1994.  A hate crime is defined as a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person.

Increased Federal Authority:  The bill authorizes the Attorney General to provide assistance (technical, forensic, prosecutorial, or any other) for criminal investigation or prosecution of State, local, or tribal felonies that are motivated by prejudice based on actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability, if requested by the State, local, or tribal law enforcement.  This provision would provide federal assistance for any violent felony based on the federal definition of hate crimes, as well as any State-based definition of hate crimes.   "Sexual orientation" is not defined in the bill.  However, a widely accepted definition for sexual orientation comes from the Diagnostic and Statistical Manual of Mental Disorders IV (DSM-IV).  The term "gender identity" is defined as meaning actual or perceived gender related characteristics. 

Two New Grant Programs:  The bill creates two new grant programs to assist States and local governments in investigating and prosecuting hate crimes. 

•          The bill authorizes the Attorney General to award federal grants to State, local, and tribal law enforcement agencies for "extraordinary expenses," associated with the investigation of hate crimes.  The bill authorizes $5 million in grants for State, local, and Indian law enforcement officials to investigate and prosecute hate crimes for each of the Fiscal Years 2009 and 2010. 
•          The bill authorizes the Office of Justice Programs to award grants to State, local, and tribal governments for programs designed to combat hate crimes committed by juveniles.  For this program, the bill authorizes "such sums as may be necessary" to carry out this provision. 

The bill also authorizes such sums as are necessary to increase the number of personnel to prevent and respond to the hate crimes provisions laid out in the bill.

Expands Federal Coverage of Hate Crimes:  The bill expands federal coverage of hate crimes in the following respects:

• H.R. 1913 prohibits willfully inflicting bodily injury, or the attempt to do so, through the use of fire, a firearm, or an explosive device because of the actual or perceived race, color, religion, or national origin of any person.  The bill allows offenders of these crimes to be sentenced to 10 years in prison and fined.  In the case of death, kidnapping, attempted kidnapping, sexual abuse, attempted sexual abuse, or attempted homicide, the offender shall be imprisoned for any term of years or for life.
• H.R. 1913 prohibits willfully inflicting bodily injury, or the attempt to do so, through the use of fire, a firearm, or an explosive device because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person.  The bill allows offenders of these crimes to be sentenced to 10 years in prison and fined.  In the case of death, kidnapping, attempted kidnapping, sexual abuse, attempted sexual abuse, or attempted homicide, the offender shall be imprisoned for any term of years or for life.

The bill states that no prosecution may be undertaken by the U.S. unless the Attorney General certifies that there is reasonable cause to believe that the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the person was a motivating factor underlying the alleged conduct of the defendant; or has consulted with State and local law enforcement officials regarding the prosecution and determined that:

• The State does not have jurisdiction or does not intend to exercise jurisdiction;
• The State has requested that the federal government assume jurisdiction;
• The State does not object to the federal government assuming jurisdiction; or
• The verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the federal interest in eradicating bias-motivated violence. 

The bill would require the Department of Justice collect hate crime statistics on gender and gender identity, as well as those that it is already collecting information on (race, religion, etc). 

Severability Clause:  The bill includes a severability clause stating that if one part or provision of the bill is found unconstitutional, the remaining provisions will not be affected. 

Rule of Construction:  The bill also includes the following rule of construction:  "Nothing in this Act, or the amendments made by the Act, shall be construed to prohibit any expressive conduct protected from legal prohibition by, or any activities protected by the Constitution."  Some may be concerned that this rule of construction is not sufficient to protect individuals, many of whom are religious leaders simply promoting their religious beliefs. 

Amendment in the Nature of a Substitute:  The amendment in the nature of a substitute, which will be enacted upon passage of the rule, makes the following changes to the bill:

• Clarifies that the bill covers tribal lands;
• Extends the time for the Attorney General to approve or deny grants to cover expenses related to investigating and prosecution of hate crimes from 30 to 180 days;
• Clarifies that the District of Columbia, Puerto Rico, and other territories are covered under the bill;
• Adds dangerous weapons to the list of devices used to attempt to inflict bodily injury; and
• Bars prosecutions, trials, and punishments for offenses not resulting in death unless the indictment is found or the information is instituted not later than 7 years after the offense.

Under current law, hate crimes are defined as any crime of violence that is motivated by the victim's actual or perceived race, color, religion, or national origin.  Federal jurisdiction of hate crimes is limited to specific federally protected activities (i.e. voting, attending public school, jury duty). 

A sentencing enhancement also exists under current law where the offender selects a victim because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of the victim.  Currently, 45 states have hate crime statutes; 32 State laws include sexual orientation; and 28 include gender.  All States prohibit a variety of violent crimes that constitute "willfully causing bodily injury."

CBO estimates that H.R. 1913 would cost the federal government $10 million over the 2010-2014 period.

POSSIBLE MEMBER CONCERNS

Many Members believe that every potential victim deserves protection-and that their sexual identity should not grant them heightened protection over another potential victim.  During Committee consideration of the bill, amendments were offered to add service members, pregnant women, and senior citizens to the list of special classes of people who deserve more protection than others.  These amendments were all voted down by Democrats. 

Sexual orientation and disability are not defined in the bill.  Some Members may feel that as these terms are used in legislation that expands the federal criminal code, they necessitate precise definitions.  Members may be concerned that in future criminal proceedings, sexual orientation will be interpreted however a judge wants to interpret it.  During debate on this issue during Committee markup, it was made clear that the Democrats did not wish to define sexual orientation at all.  In fact, they voted down (on party lines) an amendment offered by Rep. King to exclude pedophilia (sexual orientation toward a child) as a sexual orientation covered by the bill.   

Hate crimes establish a system where victims are treated differently based on the "actual or perceived" class or group with which they identify.  It will be left to law enforcement agencies to determine whether the offender was motivated by the victim's "perceived" sexual orientation, race, etc.  Many Members may feel that expecting the government to determine the feelings and motives of an individual is dangerous.

The proposed categories of "sexual orientation" and "gender identity" in H.R. 1913 create special classes of victims based solely upon behavioral identification with a group of people. Furthermore, the bill equates these protected classes with those of race, color, religion and national origin-a premise that many civil rights leaders may not feel is appropriate. 

Specifically, Ranking Member Lamar Smith has the following concerns with the bill (1) raises the possibility that religious leaders or members of religious groups could be prosecuted criminally based on their speech or other protected activities; (2) creates unequal treatment of victims by treating crimes against protected groups more seriously than non-protected groups; (3) encroaches on jurisdiction traditionally reserved to the States; and (4) is unconstitutional as the 14^th Amendment affords equal protection to every citizen under the law.