Hearing of the House Committee on the Judiciary- Jena 6 and the Role of Federal Intervention in Hate Crimes and Race-Related Violence in Public School
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REP. DEBBIE WASSERMAN SCHULTZ (D-FL): Thank you, Mr. Chairman.
Mr. Washington and Ms. Krigsten, I need to get a sense -- because I have repeatedly heard both of you say that because these children were under the age of 18, it was not within your discretion, prosecutorily, to pursue a hate crimes charge. Is that accurate?
MR. WASHINGTON: Yes, that's accurate. It's not a matter of we wouldn't pursue hate crimes charges, it's a matter of we could not pursue the hate crime charges.
REP. WASSERMAN SCHULTZ: Well, that leads me to believe that it's your testimony that you declined to charge them with a hate crime because they are under 18.
MR. WASHINGTON: That's correct.
REP. WASSERMAN SCHULTZ: Okay. Is there anything in the federal Hate Crimes statute that specifically excludes minors? Does it say anywhere in the law that you cannot charge a minor with a hate crime?
MR. WASHINGTON: 18 U.S.C. 5036, I think it is, is the statute that governs -- did I get that right, 5036? (Off mike consultation.) Oh, I'm sorry, we could -- we could charge -- we could charge them under 18 U.S.C. 245, but we get back to the limitations for juvenile proceedings for juveniles that's also in the United States Code, which puts us in a position of having to find juveniles who have committed what's called a "felony crime of violence" or some of the enumerated crimes that are in that statute.
REP. WASSERMAN SCHULTZ: But there's nothing in the law that specifically prohibits you from charging a minor with a hate crime -- other than process, the order in which you would pursue a case against a minor?
MR. WASHINGTON: Sure, go ahead.
MS. KRIGSTEN: If I could add something. Mr. Washington is absolutely correct. And I think there may be a matter of semantics that I want to make sure it's cleared up. When we talk about prosecution, that is a term that's used in adult court. And these individuals, because they were juveniles, were not eligible to go to adult court.
Now if we're talking about juvenile delinquency proceedings, that possibility was there to address the August, 2006 incident.
REP. WASSERMAN SCHULTZ: When a juvenile is charged with a crime in juvenile court, can it result in them being held in a --
MS. KRIGSTEN: It can. The result of a finding in juvenile court is a finding of delinquency, not a conviction. One of the possible punishments --
REP. WASSERMAN SCHULTZ: You're right, that is a matter of semantics.
MS. KRIGSTEN: Right.
REP. WASSERMAN SCHULTZ: But when you are charged with a crime, whether you are a juvenile or an adult, if you are held in a facility in which you cannot voluntarily leave -- it doesn't matter whether it's called a prosecution or a case against a juvenile, or whatever you choose to be calling it. And what Reverend Sharpton, what Professor Ogletree, and what all of the people other than you have been saying is that this is a matter of equality, of equal justice under the law which clearly does not seem to have been applied here.
Here's my other concern. Congressman Weiner asked you directly whether there was anything that you needed to change in the law in order to have pursued hate crimes charges against these minors. And you -- from what it sounded like to me, said no, that your department has led the way in pursuing civil rights cases and that you are doing just great.
Well if process is what has prevented you from pursuing hate crimes -- hate crimes against minors, then it appears that the law needs to adjust the process so that those things could be pursued simultaneously, wouldn't it?
MS. KRIGSTEN: I am happy to have this opportunity to clear up any confusion. There has been several statements during this hearing, both from panelists and from members of the committee, about equality between the August, 2006 noose incident and the December incident.
REP. WASSERMAN SCHULTZ: I would like you to answer my question.
MS. KRIGSTEN: What I want to make --
MS. KRIGSTEN: -- what I want to make --
REP. WASSERMAN SCHULTZ: I'd like you to answer my question about the process, and whether the law needs to be adjusted so that hate crimes charges could be pursued without regard to juvenile proceedings being pursued against minors.
MS. KRIGSTEN: And I -- with all due respect, I'm answering it the best way I know how -- which is to say, looking at the way that the federal government looked at the August, 2006 incident, is completely separate from how the state government looked at the December, 2006 incident. We're not talking about the same offices, we're not even talking about the same system of government.
The December incident was charged by a state prosecutor in state court. We're talking about federal charges in the 2000 --
REP. WASSERMAN SCHULTZ: I realize what we're talking about.
MS. KRIGSTEN: -- August, 2006 incident. And so with that framework, what I can say is, as a matter of policy at the Department of Justice, this case was declined because these individuals were juveniles, and because there was a non-criminal alternative to prosecution that was reached by the school district.
Immediately after the incident --
REP. WASSERMAN SCHULTZ: What does that have to do with the price of fish?
MS. KRIGSTEN: That is one of the -- looking at a non-criminal alternative is one of the principles of federal prosecution that federal prosecutors are obligated to consider in considering any charges. The decision, and the manner in which this decision was reached, is consistent across how the Criminal Section of the Civil Rights Division reaches charges in all federal cases.
REP. WASSERMAN SCHULTZ: Then that would seem to cry out for a change in the law so that it didn't have to be pursued that way any longer. Ms. Krigsten, I have to be honest with you -- to follow in the same vein that my colleague, Congressman Weiner, did -- you know, caution is advisable in many cases, too much caution results in impotence. And that appears to be what has happened in the pursuit of justice and equal justice under the law in this case, specifically.
And, Mr. Chairman, I also appreciate that you've held this hearing, that you called us together to examine this more closely because one would think that in 2007, that something like what happened in Jena wouldn't happen. And no one is discounting any of the -- the pursuits of justice against any of the crimes that were -- that were perpetrated. It's just that that pursuit should have been handled equally.
And, Mr. Chairman, I have to tell you that, as someone who has witnessed in my community the spraying of swastikas on homes and synagogues, and if you substitute a noose -- a swastika for a noose on this tree, I would want the same, the same treatment that the people in the community of Jena are asking for. And I assume that we might have a different reaction, but I don't trust that we would under this Justice Department.
I yield back the balance of my time.
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