BACKGROUND

This week, the House will likely consider the National Defense Authorization Act (NDAA) Conference Report.  While the House bill (H.R. 2647) did not include hate crimes language (H.R. 1913), the Senate invoked cloture to include the language of H.R. 1913 in S. 1390, the National Defense Authorization Act for Fiscal Year 2010, by a vote of 63-28. 

On April 29, 2009, the House passed H.R. 1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009, by a vote of 249-175.  H.R. 1913 increases federal authority for criminal investigations that are thought to be motivated by prejudice based on actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.  FBI statistics show that the incidence of hate crimes has actually declined over the last ten years.  In fact, only 9 of approximately 17,000 (0.05 percent) homicides in the nation involved so called hate crimes.  There is zero evidence that States are not fully prosecuting violent crimes involving hate.

SUMMARY OF HATE CRIMES PROVISIONS

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."

Division E-Matthew Shepard Hate Crimes Prevention Act-of the Senate bill (S. 1390) incorporates language very similar to that of H.R. 1913, with a few notable differences.  Unlike H.R. 1913, the Senate bill has expanded findings that seek to justify the constitutionality of and need for new hate crimes statues.

Increased Federal Authority:  The Senate bill would authorize the Attorney General to assist 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.  related characteristics. 

New Grant Programs:  The provision in the Senate NDAA also 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 2010 and 2011.
• 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 provision 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 also expands federal coverage of hate crimes, and 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 the Attorney General has consulted with State and local law enforcement officials regarding the prosecution.

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

Among the other Senate modifications, there is a new title that prohibits attacks on U.S. servicemen on account of service.  It requires a six month mandatory minimum for battery of a member of the armed services.  The Senate bill also includes a new study on the effects of mandatory minimum sentences in the federal system, a provision likely to be used by Democrats to further criticize mandatory minimum sentencing. 

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.  Further, many Members may believe that prosecuting crimes based on an offender's perceived intent is a dangerous precedent and that all violent crimes should be prosecuted to the full extent of the law.  During Committee consideration of H.R. 1913, 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 under the legislation.  Some Members may feel that as these terms are used in legislation that expands the federal criminal code, they necessitate precise definitions.  Members may thus be concerned that in future criminal proceedings, sexual orientation will be interpreted however a judge wants.  During Committee consideration of H.R. 1913, the Democrats made clear the intent not 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 behaviors of certain groups 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. 

Members may also have the following concerns with including hate crimes language in defense legislation.  Specifically, the provision (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) violates the 14^th Amendment the U.S. Constitution which affords equal protection to every citizen under the law.

MYTH VS. REALITY

MYTH:  Hate Crimes is simply an extension of State hate crimes laws that are already on the books.

REALITY:  Although 45 States and D.C. have some form of hate crimes laws, this provision represents a significant expansion of covered individuals-including sexual orientation, gender identity, and disability.  Furthermore, this provision would provide federal law enforcement assistance and federal money to States and law enforcement agencies to investigate and pursue potential hate crime violations under state and federal law.

MYTH:  Hate crimes legislation protects religious organization's First Amendment right to free speech.

REALITY:  While the provision restates the First Amendment, it does not specifically state any actions that would be protected under the First Amendment.  In fact, when Republicans sought to address these infirmities with the bill and to protect the freedom of expression and religious freedom, the Majority defeated each amendment.  During Committee mark-up of the bill in 2007, Rep. Davis (D-AL) stated that even with the First Amendment "protection" language, religious organizations would not be protected from being hauled into court for professing their faith.

MYTH:  Free speech rights have yet to be infringed upon with State hate crimes legislation. 

REALITY:  There are dozens of examples of individuals who have been targeted using hate crimes principles as the justification.  In New York, a pastor who rented a billboard and posted biblical quotations about sexual morality had them taken down by city officials who cited hate crimes principles as justification.  In San Francisco, the city council enacted a resolution urging the local broadcast media to not run advertisements by a pro-family group because of their position on same-sex marriage.  In Philadelphia, 11 individuals were arrested and jailed overnight for singing and preaching in a public park where a homosexual street festival was occurring.  Five of the 11 were charged with felonies and three misdemeanors, totaling a possible 47 years in jail, based on Pennsylvania's hate crimes law.  This provision, if made into law, would threaten religious leaders and groups with criminal persecution and investigations into a suspect's thoughts, beliefs and statements.