National Defense Authorization Act for Fiscal Year 2005

NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2005-CONTINUED

Mr. SESSIONS. Mr. President, I ask unanimous consent that the order for the quorum call be rescinded.

The PRESIDING OFFICER (Mr. CRAPO). Without objection, it is so ordered.

Mr. SESSIONS. Mr. President, the Defense bill we are working on today is critically important for our Nation. We need to complete that bill. It is important for us not to be distracted from it by bringing up amendments about which people feel strongly and which may be important, but are unrelated to defense and not germane to the issue before us.

I am glad we are able to at least proceed fairly promptly to a vote on this issue so that we can get back to the purpose with which we are dealing. We have soldiers in the field who are at risk this very moment. They need to know we are moving forward on business that relates to them, that deals with the issues that threaten their lives, and we need to make sure that we have every possible activity and report in this authorization bill to help them do their jobs better. I wanted to say that at the beginning. Sometimes these things happen, and we can offer amendments, but we do not need to do too much of this, in my view.

I raise two points about this so-called hate crimes amendment, and the reason that I will be voting against it. Different people can have different ideas and different values about how we should deal with this issue.

First, there is no legitimacy for any attack on any person because of their sexual orientation in America today. That is unacceptable behavior. It has always been unacceptable. We need to crack down on it aggressively. In fact, I believe States are doing so, as they do with all other crimes that occur throughout our country.

I was a Federal prosecutor for 15 years and dealt with the distinctions between Federal and State law on a regular basis. Most people may not realize that if someone robs a gas station, or someone shoots your daughter on her way home from school, or someone commits a rape, those are not Federal crimes. They are not prosecuted in Federal court. They cannot be prosecuted in Federal court under normal circumstances. They have always been given over to the States for prosecution. That is very important.

We have developed and expanded over the years the reach of Federal law, and in some instances that is quite good, I believe-but in some instances it is very much in dispute. In fact, liberals and conservatives say Federal law is reaching over and prosecuting and taking over cases. There are always some State offenses that are prosecuted in Federal court. Regardless of the debate, what we have decided to do in the past is each case should be evaluated on its own. I will make a couple of points.

With regard to this hate crimes legislation, Senator Hatch, the chairman of the Judiciary Committee, proposed what I thought was a good piece of legislation some time ago. That legislation said we would conduct a study, in effect, to see what the need of this legislation is. I have to tell you, Mr. President, if you want to prosecute somebody for assaulting, shooting, or harming another person, it is easier to prosecute that case if you do not have to prove what was in the mind of the person who did it. That is an additional element of a crime, one not easily proven. I know the Presiding Officer is a lawyer and skilled in these matters. It is an additional element to the crime that must be proven.

If we were to create such a hate crime, we would basically be taking on an offense that would be a fundamental State crime-an assault, a murder, or assault with intent to kill. You would be transforming that kind of crime into a Federal offense, and not only would you have to prove all the underlying elements that would be true in a State trial, but you would also have to prove that the person did it for a reason of hate, but not just any hate. If you dislike U.S. Senators and you beat up one-there may be a Federal law that protects a Senator, I don't know.

If there is a State legislator and someone goes and beats them up because they hate them, because of the way they voted, all right, that can be taken care of in State court. But what would make it a Federal offense? Well, if a person hated him, but they hated him for a particular reason-they hated him because of sexual orientation-that is why this becomes now a Federal offense rather than a State offense.

One can make arguments that this is all right to do. We did that with the issue of race in America, and there was a very real reason for it. As a southerner myself, I am sorry to say that in fact and in reality there were areas in this country where crimes against African Americans were prosecuted either not at all or not adequately; there was not proper punishment being imposed in those cases and people were denied civil rights. At certain periods of time in our Nation's history, feelings were so strong that cases could not be effectively prosecuted. That was clear. That was established. That was a fact, unfortunately.

So the Federal Government said those kinds of crimes involving race could be prosecuted in Federal court under the civil rights statute even though there may be an underlying State offense. That is how those came into effect.

Now we are being asked to go one step further. I think maybe we ought not do that. Senator Hatch's study would have analyzed the question of whether offenses involving assaults on gays are being adequately prosecuted in America. If they are being adequately prosecuted-and most States would have tougher laws. Most States have death penalty laws. This bill does not provide the death penalty for the murder of somebody under a hate crime. So are those being adequately prosecuted?

We know in a case in Colorado that a person committed murder because of the victim's sexual orientation, apparently, and was given the death penalty in State court. One offense occurred in my home State of Alabama, and he was tried and given life without parole. So I am not aware of those offenses being inadequately prosecuted. That is what I am saying.

In addition, there is this troubling concept of what is in one's mind. If the Social Security office turned a person down for their disability and they did not get a disability paycheck and they spent weeks churning it in their heart and soul and their hatred built and built and they finally went down to the Social Security office and shot everybody, well, that would not meet the definition of hate crime under this statute. It might be a Federal offense because it is the Federal Social Security agency, but if it had been a local State official it would not be a Federal crime. There would be no Federal jurisdiction.

So we are being asked to take that extra step into creating a new offense in Federal law based on the question of what is in somebody's mind when they commit the crime.

Classical American jurisprudence has been simple and direct. I know as a student in law school I learned about these things and as a former prosecutor I have been thinking a lot about it lately. I think sometimes even we who have been former prosecutors get overly aggressive about passing statutes to deal with every wrong that comes up.

Let's take the burglary statute that is in effect in almost every State in America today. It makes it a State crime to break and enter into a dwelling with the intent to commit a felony. Some of them are first degree, such as when the crime involves an occupied dwelling at night and those are the elements of their crime. That is what we have done for 200-plus years in America and England. It did not say why a person broke into somebody's house or even what kind of felony someone may be intending to commit. It could be rape; it could be robbery; it could be theft. So that is the clarity with which our law has traditionally operated.

Now we are saying if someone assaults and kills this person because they were mad at him over a girlfriend and hated him for it, that is not a Federal offense, but if a person is angry because of someone else's sexual orientation, that could be a Federal offense. Maybe that is justified and some would find it justified, but I think before we continue down this road of moving into the psychological motivations for a specific act of committing a crime, we ought to ask ourselves: is it the kind of problem we know is not being effectively prosecuted and handled in America today, is not being prosecuted and sentenced effectively based on the act that was committed, so that now we need to figure out the motive behind the act and make it a Federal crime? That is what we need to be thinking about.

I do believe Senator Hatch's legislation that he offered some time ago I think it even passed this body once, although it did not become law-said let us do a study of that and analyze where we are so we can deal with it.

Well, terrorists hate us for various reasons. People hate our Government. Some of them hate police officers. Would it be a Federal crime to commit murder against a police officer? Not to my knowledge. It would not be a crime to do that if someone hates the police officer or hates the jailer who locks up a person in compliance with the law of the land. The jailer could be murdered and that would not be a Federal offense.

This should not be seen as any kind of referendum on how we think about the treatment of people with various sexual orientations. This is a great, free country. It is a country that allows behavior people may agree with or not agree with. In my view, it is just as much a crime to injure or harm anyone whether it is as a result of their sexual orientation or any other behavior they may be participating in. Maybe someone does not like them because they are out there complaining about George Bush or complaining about JOHN KERRY and they hate them for that. That would not be a Federal crime if action is taken against them.

I do not know that we need to take this step today. In fact, I think we should not. It is something that deserves careful consideration and is not to be thrown onto the Defense bill as we are moving forward at this date. Let's think it through.
Let's do a study, as Chairman Hatch has suggested. Let's see if there is a real problem out there. If there is a problem of failure to enforce the law, then I would say this could be justified. We have done it before with regard to civil rights actions. Maybe it would be appropriate to do it now. Frankly, I do not see that today. I think it is a reach in terms of need and creates the danger of criminalizing thought processes rather than actions.

I yield the floor.