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

Witness: Attorney General Eric Holder

Chaired By: Senator Patrick Leahy

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SEN. LEAHY: Good morning. Today the Senate Judiciary Committee is going to address the serious and growing problem of hate crimes. And I think the recent events we've seen in this country show that these vicious crimes are a continuing problem.

The Senate has before it bipartisan legislation that would help law enforcement respond to this problem. The legislation has been stalled far too long, and it's time to act.

The Matthew Shepard Hate Crimes Prevention Act has been pending in the Senate for more than a decade. We've held previous hearings on this bill. The House has held many hearings on it. Both the House and the Senate have voted for this bill over and over again.

But when Senator Sessions requested a hearing on this legislation at last week's oversight hearing, I wanted to accommodate his request. The attorney general, who had just been here and normally would not have been back for a number of months, agreed to return to the committee.

Attorney General Holder, I thank you for doing that. I appreciate it very much.

We know two weeks ago, just blocks away from this hearing room, a man entered the National Holocaust Museum. He shot and killed Steven Johns, a security guard. It was a cowardly action of a white supremacist that resulted in the death of a 39-year-old husband, father of an 11-year-old son. The tragic murder is just the latest in an alarming string of hate crimes.

Now, no doubt the courageous actions of Officer Johns and his fellow guards saved dozens of lives. And I regret that, as a private security guard protecting a federal facility, he was without a bullet- proof vest, because what I've read about this, it would have saved his life.

The facts set out in several recent reports show hate crimes and hate groups are growing nationwide. The Leadership Conference for Civil Rights just released a report on hate crimes that found the number of hate crimes reported has consistently ranged around 7,500 or more annually. That's one for every hour of the day, 24 hours a day. A recent report from the Southern Poverty Law Center found that hate groups had increased by 50 percent since 2000, from 602 hate groups in 2000 to 926 in 2008.

Last Saturday, 2,000 mourners filled the Ebenezer AME church. They heard Reverend John McCoy say the hope of the Holocaust Museum was that the world would never again allow such crimes against humanity, yet Officer Johns is another victim. As mourners of many faiths and backgrounds listened, Reverend Granger Browning said the same hate that created slavery was the same hate that caused the Holocaust.

I looked at the stray bore holes that covered the door of the National Holocaust Museum, a jarring reminder. From the horrific slayings of Matthew Shepard and James Byrd during the 1990s to the recent tragic murder of Louis Ramirez last year, it's been clear that we have to do more to protect Americans from these crimes.

I commend Senator Kennedy for his leadership in this effort over the years. I'm proud to be a co-sponsor of the Matthew Shepard Hate Crimes Prevention Act of 2009. It's bipartisan. It allows for federal prosecutors to move in, focus the attention of resources of the federal government. We work closely with the Justice Department to ensure we're advancing a bill that's fair and constitutional and effective and cracking down on brutal acts of hate-based violence.

The bill will strengthen federal jurisdiction over hate crimes to support -- I might add, and this is very important to so many of us, not to substitute for state and local law enforcement -- to strengthen state and local law enforcement. We see strong support from state and local law enforcement organizations across the country.

The legislation will combat acts of violence motivated by hatred and bigotry but does not target pure speech, however offensive or disagreeable, and it certainly does not target religious speech. We (were ?) careful in crafting it. We want to respect constitutional limits and also, in a country like ours, the differences of opinion. So I'm glad the attorney general is here, and I thank him for rearranging his schedule to be here.

I also see in the audience and I welcome Janet Langhart Cohen, who's a dear friend of both my wife and mine. She's the wife of the former secretary of Defense, a former senator, former member of this committee, and I served with him in those capacities, William Cohen.

I mention this because her husband was at the Holocaust Museum at the time of the shooting. He knew Steven Johns, the security guard who was killed. I look forward to hearing from her and Michael Lieberman and the Anti-Defamation League and Dr. Mark Achtemeier and our other witnesses today.

I'm going to put my whole statement in the record. I know that we have health care and everything else going on, so it's a busy time.

Senator Sessions, we tried to accommodate you by having this hearing, and here we are.

SEN. JEFF SESSIONS (R-AL): Thank you, Chairman Leahy. And I look forward to the hearing. I am sorry that a number of our members will not be able to be here today because of the health care matter that's moving on, and it's of huge importance. I know Senator Hatch is going to have to leave, and Senator Kyl likewise is a leader in that, as is Senator Grassley, of course, and Cornyn. And Dr. Coburn is not a member of the committee, but is deeply involved in it. So I'm sorry that we probably won't have more people here today.

Let me just say that I believe deeply in the federal legal system, that we need to get it right. I've had 15 years of practice in that system. The kind of crime we had at the Holocaust Museum is just heartbreaking and unacceptable and needs to be prosecuted to the absolute fullest extent of the law, as any of these kind of vicious crimes need to be prosecuted. And I believe they will.

I would note that a security guard at some other location who was murdered in the course of trying to do their duty and help others probably would not be caught and covered by this, probably would not get the benefit of additional federal prosecution. Perhaps I think this legislation would appear to cover the Holocaust Museum case, and I would certainly admit that and concede that.

Let me just say the way I analyze it. The original Civil Rights Act that protected people in carrying out their civil rights duties and protected them from attack because of their race was based on a demonstrated need. There was indeed, I am sad to say, a situation in significant parts of our country where African-Americans were not protected.

It was easy to demonstrate that there was a double standard of justice. And they were not being protected, and often murders or attacks occurred and insufficient prosecutions occurred; sometimes no prosecution. So there was a justification for that, and that law was passed. And I have charged it as a United States attorney, and I believe it was helpful in certain cases.

I will just say, therefore, that when we now carve out a different class of people that may also deserve that kind of protection, we need and owe it to the American people and to our legal system to explain why these cases are such, that they're not being adequately prosecuted by state courts, why they're not being adequately prosecuted throughout the system, and why we need to have the federal government take over prosecutions that they have not taken over before.

A lot of people don't know that a murder that occurs when someone picks up a rock and murders somebody with it within some state border, that is not a federal crime and probably cannot be made a federal crime. Maybe it can be; probably not, because there's not a nexus to interstate commerce or those kind of things.

Murders occur all over America every day. Robberies, assaults, rapes, burglaries occur every day. And those are handled by our state and local jurisdictions. Probably 90-plus percent of criminal prosecutions in America are done by our states and local governments. They do a pretty good job. And, in fact, all of us who have been involved in prosecutions know that police and prosecutors in state governments are far more effective today than in the past. They're better trained. Many of them have college degrees; the police officers do. They have access to more technology and equipment. There's more sharing of expertise among agencies. And they're doing a much better job.

I think the FBI statistics would show that hate crimes have declined over the last 10 years.

So, one of the things that's important is to know, do we have a problem of significant numbers of cases -- even a less than significant, a noticeable number of cases not being prosecuted in state and local governments relating to these kind of issues that we're calling hate crime.

Senator Hatch has, for years, proposed a study to examine just that. And for years we've never got it done. I think that would be a preliminary step in this process. And also, people are concerned about how we are picking and choosing the people who receive the extra protection. Are we doing that wisely, on a principled basis -- one that can be defended?

So, Mr. Attorney General, we're glad you're here. It is an important hearing. We want to do this right. I would say again, I believe people who commit these horrible crimes need to have the stiffest punishment imposed, and certainly support that and look forward to discussing these issues this morning.

SEN. LEAHY: Thank you.

Mr. Attorney General, the floor is yours.

ATTY GEN. HOLDER: Thank you, Mr. Chairman.

Chairman Leahy, Ranking Member Sessions and members of the committee, thank you for the opportunity to appear before you today to discuss the Matthew Shepard Hate Crimes Prevention Act of 2009. This administration strongly supports this vital legislation which will help protect all Americans from the scourge of the most heinous, bias- motivated violence.

Nearly 11 years ago -- 11 years ago -- on July 8th, 1998 I testified before this committee as deputy attorney general to urge passage of an almost identical bill -- 11 years ago. While it is unfortunate that 11 years have come and gone without this bill becoming law, I am confident that we can now make the important protection that it offers a reality. Indeed, one of my highest personal priorities upon returning to the Justice Department is to do everything that I can to help ensure that this critical legislation finally becomes law.

As the recent tragedy at the Holocaust Museum demonstrates, our nation continues to suffer from horrific acts of violence inflicted by individuals consumed with bigotry and prejudice. Today, just as when I first testified on this issue in 1998, bias-motivated acts of violence divide our communities, intimidate our most vulnerable citizens, and damage our collective spirit.

The FBI reported 7,624 hate crime incidents in 2007, which is the most current year for which the FBI has complete hate crime data. Recent numbers also suggest that hate crimes against certain groups are on the rise, such as individuals of Hispanic national origin. Between 1998 and 2007, more than 77,000 hate crime incidents were reported by the FBI. That is nearly one hate crime for every hour of every day over the span of a decade.

President Obama strongly supports this bill. As you know, he co- sponsored similar legislation when he was in the Senate. On April 28th of this year the president said, and I quote, he urged that members of both sides of the aisle "act on this important civil rights issue by passing this legislation to protect all of our citizens from violent acts of intolerance," unquote.

The president and I seek swift passage of this legislation because hate crimes victimize not only individuals but entire communities. Perpetrators of hate crimes seek to deny the humanity that we all share, regardless of the color of our skin, the god to whom we pray, or the person who we choose to love.

The time is now to provide our federal, state, local and tribal law enforcement officers with the tools that they need to effectively prosecute and deter these heinous crimes. The time is now to provide justice to victims of bias-motivated violence and to redouble our efforts to protect our communities from violence based on bigotry and prejudice.

For these reasons, I strongly urge passage if the Matthew Shepard Hate Crimes Act of 2009. I'm pleased to submit the full text of my prepared remarks for the record, and I look forward to answering any of your questions. Thank you.

SEN. LEAHY: Thank you very much, Attorney General.

We did pass the federal hate crime legislation in 1968 in the wake of the assassination of civil rights icon, Martin Luther King. That was six years before I came to the Senate. But, when we see the shooting -- we talk about the holocaust; the beating death of a Latino man in Shenandoah, Pennsylvania; gang rape of a woman in San Francisco because of her sexual orientation last December, these are very, very serious things.

And I appreciate what you said about your testimony as deputy attorney general. I remember that very, very well. And I remember you were asked at the time, but how do you respond that these are really basically local crimes? I mean, every state has laws against murder. Every state has laws against assault. Why can't we just say, okay, let the states worry about it?

ATTY GEN. HOLDER: Well, in some ways I don't disagree with that statement, in the sense that what we're looking for here is federal jurisdiction that would be -- that would come into play if there was a demonstrated need, if the states did not have the capacity, did not have the willingness, the desire to prosecute these kinds of cases.

In terms of the legislative expansion that we're looking for here, we're looking to have the federal government have tools to backstop the efforts that would be done by our state and local partners. There's no question that, with regard to the vast majority of these crimes, they would be handled by the state. But, for those cases that protect -- that pose particular problems, or expose an inability or unwillingness for the states to prosecute them, we think that there is the demonstrated need for the federal government to become involved.

SEN. LEAHY: Is there any violation of the Double Jeopardy clause of the Constitution in this legislation?

ATTY GEN. HOLDER: No. We have looked at this -- we've had the very bright people in the Justice Department Office of Legal Counsel, and other places, and we do not think that there is any problem in that regard.

SEN. LEAHY: I look at a couple different issues -- one, as a former state prosecutor; and also as the son of a printer, in a family that owned a printing business. Could this be -- in any way, be used to infringe on people's First Amendment rights -- either their First Amendment right to speech, or their First Amendment right to religion?

ATTY GEN. HOLDER: No. This is a bill that is designed to prosecute and hold people accountable for conduct, not for speech.

This does not, in any way, infringe upon a person's right to say things that I would vehemently disagree with, even about the protective categories of people that we want to expand the bill to cover. This is all about preventing violence, and not about inhibiting speech.

SEN. LEAHY: This bill adds crimes against people because of their gender, and their disability, or sexual orientation or gender identity. Is that an important issue today?

ATTY GEN. HOLDER: I think it absolutely is.

If one looks at the hate crimes statistics over the last decade, you will see that the third largest component of hate crimes involves sexual orientation. About 12,000 of those crimes, over the last decade, 16 percent of all of the hate crimes that have been reported, deal with sexual-orientation motivated.

And then if you look at the other categories -- gender, disability, gender identity, we believe that federal law should cover those categories of hate-related crime.

SEN. LEAHY: Again, going back to the state law enforcement -- because there will be an issue, in the hate crimes legislation we have now there is a certification procedure, so that you're not just coming in and telling the state to get out of the way.

We've put similar -- some would say, more exacting certification in this bill. Has that certification procedure worked well in the past in the hate crimes?

ATTY GEN. HOLDER: Yes, I think it has.

And I think that the legislation wisely had a certification provision in it. It assures that, before the federal government would become involved in any hate crime prosecution, there would have to be sign off at the highest levels of the Justice Department, either by the attorney general or by the attorney general's designee, which I think is appropriate.

SEN. LEAHY: I know in the House -- our bill allows for prosecutions, where you or your designee -- and you said it would be the deputy, determines that prosecution by the United States is in the public interest and is necessary to secure substantial justice.

The House bill has, as a criteria, where a state doesn't object or doesn't intend to exercise jurisdiction.

Which version is better?

ATTY GEN. HOLDER: We prefer the Senate provision.

One of the things that we are concerned about is the possibility -- at least the possibility that a state or local jurisdiction would be unwilling to pursue one of these matters. And to put the federal government's ability to become involved in this in the hands of a jurisdiction -- that perhaps would not want to become involved or would not want the federal government to become involved, we think is inappropriate.

We think there is a balance that is struck here by ensuring that the highest levels of the Justice Department make the determination that the federal government should be involved.

SEN. LEAHY: Thank you.

Senator Sessions.

SEN. SESSIONS: Thank you, Mr. Chairman.

No, no, Senator Hatch has to leave, and I would yield to him at this time.

SEN. ORRIN HATCH (R-UT): Well, thank you for your courtesy, Senator Sessions. I appreciate it.

Mr. Attorney General, in the many years I've been involved in this debate I've asked proponents of federal hate crimes legislation for evidence that crimes motivated by prejudice and bias are not being punished at the state level. And you've been very hedging here too, because you know most all of them are.

Certainly, there are individual stories wherein a perpetrator received a sentence that may have been denied -- or, excuse me, that may have been deemed too lenient.

And there are I'm sure many accounts of crimes being punished as something other than a, quote, "hate crime," unquote.

Now you cited a few of these cases in your written testimony, but I've seen little evidence that there's a trend among state law enforcement officials to ignore violent crimes motivated by prejudice or that state court judges are more likely to give too lenient sentences in those cases than they are in others involving crimes.

Now do you have any evidence that this is the case, that there is a trend that specifically with regard to biased motivated crimes, justice is not being served in this country?

ATTY GEN. HOLDER: I'm not sure that I would say that I see a trend. I think that state and local prosecutors, our partners, do a good job. But I also know as I noted in my prepared remarks that there are instances where there is the need for the federal government to come in where a state or local -- locality for whatever reason has decided not to pursue a case where I think it is clearly appropriate or does not have the ability do to that.

And one of the things that I think we should focus on here --

(Cross talk.)

SEN. HATCH: -- I don't mean to interrupt you, but I have to on that. Do you know of any instances where that's the case?

ATTY GEN. HOLDER: Well, I have some in my prepared remarks.


ATTY GEN. HOLDER: I think about the case, I think it was in California, involving threats that were made before an assault actually occurred and that matter was not pursued. I believe it involved people of South Asian origin. And there are other provisions or other instances as I said that I referenced in my --

SEN. HATCH: Will you submit those to us so we can -- I mean, we need to look at that.

SEN. LEAHY: They have been made part of the record.

SEN. HATCH: Okay. Well, I'd like to see as many cases as you can come up with that would help us to understand that this is a major problem because I haven't seen it as this.

ATTY GEN. HOLDER: Well, one of the things I would say is that the bill also allows us because it does away with those six protected activities, it gives the federal government a greater ability to help our state and local partners where perhaps they want to prosecute a case like this but don't have the technical expertise, the technological capability of building such a case. This would allow the federal government to partner with our state and local counterparts.

SEN. HATCH: Well, I'm curious about your interpretation of some of the language in this bill. As you know, it would create two new federal offenses. To paraphrase the bill, both of these provisions would punish those who cause bodily harm to a person, quote, "because of", unquote, the status, race, religion, sexual orientation, et cetera of, quote, "any person", unquote.

Now this I believe poses two problems. First, instead of requiring that a defendant actually be motivated by animus or prejudice, the bill only requires that they be motivated by the status or group membership of a person. Now this would appear to make all rapes, because they are motivated by a person's gender, punishable as hate crimes. Now, they're heinous crimes, no question about that, but even worse, robberies resulting in bodily injury could be classified as hate crimes if the victim was chosen because of his or her gender or disability.

Now you said in your statement the Justice Department policy would prevent such prosecutions from taking place, but is there anything in this legislation that would prevent such prosecutions down the line?

Also the bill doesn't limit the applicability of crimes motivated by the identity or group membership of the victim. A defendant, therefore, could be punished if he was motivated by his own membership in a protected group, the victim's membership or even that of an unrelated third party. Now with this legislative language, couldn't the bill considerably be construed to cover almost any violent crime?

ATTY GEN. HOLDER: No, I don't think so. I mean, if one looks at the bill, there are specific protected categories that have to be proven to be the motivating factor behind the violent act that the person engaged in. The mere membership of a defendant in a particular group would not be sufficient to trigger the jurisdiction of this statute.

The focus really is on what was the motivation of the defendant in perpetrating the violent act, and I do not think that the statute as drawn and as intended to be enforced is overly broad as I think you're suggesting.

SEN. HATCH: My time is up. Thank you, Mr. Attorney General.

SEN. LEAHY: Thank you very much Senator Hatch. Senator Feinstein.

SEN. DIANNE FEINSTEIN (D-CA): Thank you very much Mr. Chairman. As the Attorney General was testifying, I was thinking back to the 103rd Congress where I introduced the Hate Crimes Enhancement Act and have tried to get the race, creed, color extended to gender, sexual orientation, disability and we have always failed. And so this is really the opportunity to do this in this bill.

Secondly, I think this bill presents the caution to states, to counties to look deeply to see if a crime of violence in fact is motivate by hate, not to dismiss it. And I think in our culture and in my state in particular where minorities are becoming majorities of population in some areas.

An Asian couple on a beach at Tahoe gets beaten up. Why? Look deeply into that. The law only -- this law only applies to a felony and a crime of violence. And the backstop of the law is that the federal attorney general if the state refuses to prosecute can also look into the case and make a decision well this case in fact does deserve prosecution; the state has not done it, therefore the federal government will.

And these crimes happen -- you know, the lesbian couple in a bar they leave, one woman is tracked, she is raped. I've heard people say oh well, she deserved it. This would give the federal government the opportunity to look into that crime to see if it's motivate by hate.

There's one other point I want to make. Hate crimes are really the worst. They are scarring forever on the individual, they are brutal when they happen -- the Matthew Shepard case is obviously a case in point. And there should have federal oversight. So if there is a county or if there is a state that refuses to prosecute, that ignores the element of hate in the commission of a felony, the federal government can stand up and say we're going to prosecute.

I think the time is long past for this. I really sincerely believe it's going to be helpful in diminishing these crimes. And I come from a state where the immigration debate has -- some of it has been a part of hate. And people have been beaten up because they happen to be Hispanic, they happen to be standing on a street corner where somebody doesn't want them. And if the state ignores this, the attorney general can look at it and say we have decided to prosecute this case.

So I have no questions other than I really believe 10 years is too long to wait for it. I really believe in 10 years these hate crimes are increasing and I really believe that backstopping states with the ability of the attorney general to take action is important.

So I'm very happy to be here this morning. Thank you, Mr. Chairman.

SEN. LEAHY: Senator Sessions.

SEN. SESSIONS: Thank you Mr. Chairman.

And Mr. Attorney General I think you are incorrect in referring to Senator Hatch's question about the need to prove animus or ill will. The statute on page 10 says if you receive an injury to any person, quote, "because of the actual or perceived race, color, religion or national origin of any person" and the same language is in the next provision.

And I would note that the United States Commission on Civil Rights, which six of the eight members have written this body and this Senate Committee and the president to oppose this legislation, say that the legislation does not, quote, "require that the defendant be inspired by hatred or ill will in order to convict". It is sufficient if the act's, quote, "because of", closed quote, someone's actual or perceived race, color, religion, national origin, gender, or sexual orientation. They note that a robbery might well steal only from women, rapists seldom are indifferent to the gender of their victims, and they note that the objective meaning of the language and considerable legal scholarship would certainly include those kind of offenses as being covered by the act.

How do you respond to that?

MR. HOLDER: Well I disagree with the interpretation.

SEN. SESSIONS: Well where in here does it say it has to have ill will and animus in the statute?

ATTY GEN. HOLDER: Well it talks about -- it says because of. And it seems to me that that is what defines the motivation of the person, the person who is the potentially defender or is the defendant has to have acted because of the other victim's identity or inclusion in one of the protected groups. It does not simply say that -- I don't read it as nearly as broadly as you indicated.

It seems to me that there has to be proof that the motivating factor was that the victim's inclusion in and then the person's motivation for getting at a --

(Cross talk.)

SEN. SESSIONS: -- Senator Hatch doesn't agree and neither does the civil rights commission of the United States who opposes this legislation stating in effect these are double prosecutions, not technically violations of the double jeopardy clause.

I think that's correct. I think you could technically argue that we have two separate sovereigns, but it is a violation of the double jeopardy spirit of the Constitution. And we can take this step perhaps lawfully but should we is the question.

ATTY GEN. HOLDER: But -- look at the -- (inaudible) -- Senator, is that, you know, the section -- because of the actual proceed -- (inaudible) -- or national origin of any person is the same as the current hate crimes law, 18USC245. So I don't see that although we expand the number of groups, we're not in anyway changing what I think is the actionable language. And that's why I don't think that the concern about this being overly broad is necessarily justified.

SEN. SESSIONS: Okay. I think it is overly broad. I'm pretty confident of that.

Let's take a situation -- I don't know how to think this thing through: A man speaks forcefully for gay rights at a town hall meeting. An argument ensues and then he's attacked by an individual. They get in a fight and one assaults him and says hateful words to him when he does that. Would that be a hate crime?

ATTY GEN. HOLDER: It would depend on -- you know, the facts are the things that will define --

SEN. SESSIONS: But on the surface of it, that would meet the standard, would it or would it not?

ATTY GEN. HOLDER: It would depend on what is the motivation of the defendant. Did the defendant hit the other person because they were just involved in a dispute, an argument, and the person just happened to -- the defendant just happened to go off? Or did the defendant strike the person because of his sexual orientation --

SEN. SESSIONS: It wouldn't be the words, but it would be the actual sexual orientation or gender or race of the person that would make the decision?

ATTY GEN. HOLDER: Well, you'd have to look at the totality of the circumstances in trying to decide what was the motivation of the person who actually committed the crime? Was it a person who was just mad, as we sometimes all get mad, and therefore hit the person?

SEN. SESSIONS: Well, he used racial slurs, say, hypothetically before he attacked.

ATTY GEN. HOLDER: Well, that would be an indication that there is a possibility that --

SEN. SESSIONS: What about a minister who goes to a town hall meeting and quotes the Koran and the scripture and says homosexual activities are immoral and he's attacked by a gay activist?

ATTY GEN. HOLDER: Well, the statute would not necessarily cover that. On the other hand, I think the concern that has been expressed has actually been the one that has been reverse where --

SEN. SESSIONS: So is there a reason for someone to think that this is odd? Does that strike you as odd that one might be a crime and the other not?

ATTY GEN. HOLDER: No. The question -- you're focusing on speech there. And the question is not --

SEN. SESSIONS: No. I'm talking about assault.

ATTY GEN. HOLDER: Well, but you're talking about -- if in fact a person -- we're talking about crimes that have a historic basis -- groups that have been targeted for violence as a result of the color of their skin, their sexual orientation. That is what this statute is designed to cover.

The fact that somebody might strike somebody as the result of speech -- again, somebody gets into an argument and we don't have the indication that the attack was motivated by a person's desire to strike at somebody who was in one of these protected groups, that would not be covered by the statute.

SEN. SESSIONS: Well, I think that's part of the problem. The elderly are not protected groups, security guards are not protected groups, soldiers are apparently not protected groups. Some are protected groups and get special protection under this law.

ATTY GEN. HOLDER: But one has to look at the history of -- the unfortunate history of our nation. There are groups who have been singled out, who have been objectives of violence simply because of their sexual orientation, the color of their skin, their ethnicity.

We have to face and confront that reality, that which historically has been a problem for that nation continues to be a problem for this nation. In the absence of action by the federal government over the last 11 years I think turns our back on a reality that I think it is now time for us to confront.

SEN. LEAHY: Thank you.

Senator Sessions had mentioned some members of the U.S. Commission on Civil Rights. Others supported it.

I note that we have 300 civil rights, professionals civic, educational and religious groups endorse this; 26 state attorneys general; former U.S. Attorney General Dick Thornburgh; virtually every major national law enforcement organization -- including the Federal Law Enforcement Officers Association; Hispanic American Police Command; Officers Association; the Hispanic National Law Enforcement Association; the International Association of Chiefs of Police; the International Brotherhood of Police Officers; the major cities Chiefs Association; National Asian Peace Officers Association; National Black Police Association; National Center for Women and Policing; National Coalition of Public Safety Officers; National District Attorney's Association -- that's a good place, having been vice president of that association; National Latino Police Officers Association; National Organization of Black Law Enforcement Executives; Police Executive Research Forum; Police Foundation; 44 women's organizations; 64 disability rights organizations; 47 religious faith organizations.

We have in the audience representatives of the African American Ministers in Action; the International Association of Chiefs of Police; National District Attorneys Association; National Center for Transgender Equality; The Third Way; members of the United States Commission on Civil Rights and the Human Rights Commission. I'll put their letters and statements in the record. I just didn't -- I want to note there are a number who --

SEN. SESSIONS: Mr. Chairman, I would offer this one too from the United States Commission on Civil Rights. The first letter of which says, "We urge you to vote against the proposed Matthew Shepherd Hate Crimes Act", quote, "We believe the act will do little good and a great of harm." Closed quote. Six of the eight members signed it, including Gerald Reynolds, the chairman; Abigail Thurston, the vice chair.

SEN. LEAHY: Thank you.

And I will also put in the record another letter from the United States Commission on Civil Rights and those members who do support it.

Senator Durbin.

SEN. RICHARD DURBIN (D-IL): Thank you very much, Mr. Chairman.

Attorney General Holder, it is a legitimate inquiry by this committee as to whether or not we should expand federal crimes -- whether there are adequate criminal statutes at the state and local level. And I think we should ask that question and you have addressed it from your point of view.

When I considered this debate, I looked back in history to another debate on anti-lynching legislation. And many of the same arguments -- in fact, many of the same words were being used in 1922 to argue against a federal anti-lynching law. That of course was focused on the issue of race. This expands the concept beyond race to other elements, but it's a legitimate inquiry. I happen to come down on the side that federal involvement in this is warranted.

But I want to address two specific issues if I can, in a brief period of time: The overwhelming correspondence I'm receiving in opposition to the hate crimes legislation comes from the religious community, primarily from Christian churches who believe this would be an infringement on religious speech. And their argument goes along these lines:

If a minister stands before his congregation and says that he believes that the Bible makes it clear that homosexuality is a sinful way of life and he preaches that to his congregation and urges them to not only tell their family, but to tell everyone what he believes is the revealed word of God through the Bible -- that homosexuality is in fact -- should be condemned and is in fact unacceptable. And then someone in that minister's congregation acts on that sermon -- that motivation -- either in speech or in conduct that the minister could be held responsible as well under this statute.

So I'd like to ask you to be explicit as you could be in that particular instance where religious speech condemns homosexuality, urging all of the congregants to join him in that belief and to say even to those homosexuals that they meet that they are sinning in their lifestyle. Could you be as explicit as you could about whether this statute would inhibit that kind of religious speech or hold that religious minister liable for conduct.

ATTY GEN. HOLDER: Under the facts as you laid them out, Senator Durbin, that minister would not be liable under the provisions of this bill.

This bill seeks to protect people from conduct that is motivated by bias. It has nothing to do with regard to speech. The minister who says negative things about homosexuality, about gay people, is a person I would not agree with but is not somebody who would be under the ambit of this statute.

The person who actually committed the physical act of violence would be the person -- assuming that all the jurisdictional requirements were met. It is the person who commits the actual act of violence who would be the subject of this legislation, not a person who is simply expressing an opinion.

SEN. DURBIN: Yesterday, the Department of Justice announced the arrest of a blogger who had called for judges in Chicago to be killed, because of a recent ruling involving guns -- and went so far as to publish maps as to how you could find their homes and how they go to work and that sort of thing.

So let me take it to the next step. What if that religious person I just referred to -- this minister -- says, it is not only against the word of God, you have an obligation to go out and punish those who are guilty of this conduct.

Now, has that crossed a line where religious speech has now become an incitement to violence? Is that minister now -- can that minister now be held responsible under this hate crimes statute?

ATTY GEN. HOLDER: No. Again, we are looking at people who actually commit physical acts of violence. However deplorable the speech that you have just described -- again, speech with which I would vehemently disagree -- that is not cognizable under the statute.

SEN. DURBIN: Now, let me ask you about bodily injury, because that is an important element in this as well.

What about those who are harassed -- for instance, homosexuals who are harassed by people who believe that their lifestyle is contrary to the word of God -- people who would carry signs or call their homes? Now, would that conduct -- that sort of harassment -- be covered by this hate crime? Could those people be prosecuted for harassing and creating mental intimidation of those who are guilty of what they consider immoral conduct?

ATTY GEN. HOLDER: Again, we're looking for acts that result in bodily injury, and in the absence of bodily injury, that kind of conduct would not be cognizable under the statute.

SEN. COBURN: Thank you very much.

SEN. FEINSTEIN: Thank you, Senator.

Senator Coburn, you're up next.

SEN. TOM COBURN (R-OK): Mr. Attorney General, thank you for being here. Appreciate it. I want to go back and touch on something that Senator Hatch asked. Do we actually have good statistics that tell us that we're not fulfilling and carrying out the intent of state laws that would require us to do this?

ATTY GEN. HOLDER: I think that we have -- certainly good statistics would tell us that hate crimes are an ongoing problem for this nation, about 80,000 or so in the past decade. The ability of the federal government to help state and local jurisdictions who want to prosecute these kinds of crimes is certainly impacted by the federal activities requirement that the --

(Cross talk.)

SEN. COBURN: Actually my question's a little different then. Do we have statistics where the states are failing? You mentioned two anecdotal cases in your testimony that I heard over the TV before I got here, but do we have statistics that say we have these 80,000 crimes and 5,000 of them the states did a poor job on? Are there any statistics? In other words, I'm trying to find -- I have a lot of questions about this bill, the least of which is how you determine what motivation is. But what state -- let me ask it a different way. Which states are regularly or systematically failing to enforce their laws punishing crimes of violence?

ATTY GEN. HOLDER: Well, as I said -- as I pointed out in my written testimony, there are instances that I think we can point to where a state or a local jurisdiction has failed to act in a way that I think we would all think that a state or locality should.

But I don't think -- as Senator Hatch asked -- I don't think that I can say that there is a trend, that there is a trend among the states or local jurisdictions in failing to go after these kinds of crimes. What we're looking for is an ability in those instances, those rare instances, where there is an inability or unwillingness by state or local jurisdiction to proceed if the federal government would be able to stop, would be able to fill that gap. That's why this legislation, we think, is so necessary. It would not put the federal government in a position to replace our state or local partners.

SEN. COBURN: Okay, I'm going to try it a different direction. We don't have the statistics; we don't know what the relative level of lack of the ability of the states. We're assuming that they need our help. And you've noted anecdotally some of those instances, but we don't know -- I think we have 45 states that have hate crime legislation. Are the states that don't have hate crime legislation worse in terms of the prosecution of these same similar events than the states that have them?

ATTY GEN. HOLDER: I don't know. I'd have to look at the statistics, look at the evidence that we have. But what I do know is that as the law now exists, there are people who are the objects of hate, violence, who the federal government does not have an ability to protect if a state decides not to prosecute the case. And the way the bill is presently -- the way the statute is now in force is there's also an inability of the federal government to help a state or local jurisdiction where we might want to because of the requirements --

SEN. COBURN: We don't know the incidence of that. We don't know the incidence of that.

ATTY GEN. HOLDER: Again, we can point to specific cases, but I don't have an ability to give you --

SEN. COBURN: But I can point to specific cases on lots of things that states don't do that we would like for them to do different that we don't come and make a special law that we can step across that boundary between states and federal government to enforce them do that.

ATTY GEN. HOLDER: The difference, I think, though, is that there is the historic nature of the kinds of conduct that we're talking about, people who are singled out because of their race, their religion, under the new provision their sexual orientation, where there is a history of --

(Cross talk.)

SEN. COBURN: I understand that and I agree with that, and that's why you have 45 states that have passed those laws.

Let me go back. I asked you during last week's hearing whether you viewed the June 1st meeting -- murder of Army Private William Andrew Long -- and it was targeted by a Muslim because he was a U.S. soldier as a hate crime. And you stated that it is potentially a hate crime, and you said the DOJ had responsibility to prosecute those who killed Private Long.

And here's what the gentleman who killed Private Long said. He said, "This was an act of retaliation, an act for the sake of God, for the sake of Allah, the lord of all the world and also retaliation on the U.S. military." He remains unrepentant. He says I do feel I'm not guilty. I don't think it was murder because murder is when a person kills another person without justified reason. How can this not be considered a hate crime?

ATTY GEN. HOLDER: Well, there's a certain element of hate, I suppose, in that, but I think what we're looking for here in terms of the expansion of the statute are instances where there is a historic basis to see groups of people who are singled out for violence perpetrated against them because of who they are. I don't know if we have the same historical record to say that members of our military have been targeted in the same way that people who are African- American, Hispanic, people who are Jewish, people who are gay have been targeted over the many years.

SEN. COBURN: So what we're willing to do is elevate those crimes over the very intended hate crime that this man perpetrated upon this soldier. And we're saying they have an elevated status?

ATTY GEN. HOLDER: Well, it's not a question of elevating the crime, it is dealing with the reality that we confront; 80,000 crimes directed against people who this bill would cover. I don't know if we have the same kind of statistical information with regard to members of our military --

SEN. COBURN: My time has expired.

ATTY GEN. HOLDER: We can certainly say that over the course of the last decade there have been 80,000 crimes that have been directly against people because of their race, religion, national origin or color.

SEN. LEAHY: Thank you. And Senator Klobuchar.

SEN. AMY KLOBUCHAR (D-MN): Thank you very much, Mr. Chairman. Thank you, Mr. Attorney General. I remember the first time I met you was actually at a VA introduction of this bill with then-President Clinton. And I remember it for a few reasons, one because it was my first official event in Washington and I was a young prosecutor and was asked to introduce the president because of cases we had had in our jurisdiction.

I remember standing out there with him on one side and the attorney general on the other, huge room of people in the East Room for this historic announcement. They start playing "Hail to the Chief." I start walking and I feel this big hand on my shoulder and this voice says, "I know you're going to do great out there, but when they play that song, I usually go first." (Laughter.) That's why I remember it.

But I also remember it -- I also remember it because I had the opportunity to meet the investigators in the Matthew Shepherd case and to hear their stories about how this had changed their lives investigating this case and what they had thought about gay people before and what they thought about them later.

And I thought about the cases that we had had in our jurisdiction before this introduction of the bill and after, from the case of a young African-American boy who was shot by a guy who said he was going to go out and kill someone on Martin Luther King Day -- and he almost did; the case of a man that was severely beaten and had brain damage for speaking Spanish because the foreman of that company didn't like that he was speaking Spanish; the cases we recently had with a Hindu temple that was severely vandalized by young kids; and the case of a Korean church that had all kinds of hateful graffiti written on it.

Those were cases in Minnesota, a place where you might not think you'd see these kinds of cases but we did.

My question -- and I am a supporter of this legislation -- is just you talked about how this would be a backstop, that most of these cases would continue to be handled by state and local jurisdictions. What kind of process will the DOJ go through in deciding whether or not to take on a case, a hate crime case as a federal crime?

ATTY GEN. HOLDER: Well, I think that the -- we do it in the typical way that we do now. Our civil rights division would look at the matter. There would have to be determination made by the Department at the highest levels; the involvement of the federal government, the Justice Department would be appropriate. There is a certification requirement that the attorney general or the attorney general's designee make the decision that the federal involvement is appropriate.

So we would be deferring, I think, in the vast majority of cases to our state and local partners. But in those instances where we thought that federal involvement was appropriate -- and again this would be done at the highest levels of the department -- we would like to have the ability to help our state and local partners or we would like to have the ability to become involved and bring cases on our own.

SEN. KLOBUCHAR: I'd also note I was hearing some of my colleagues that in many areas, gun cases, drug cases, state and local and federal authorities work together and decide what's best for the prosecution of a case. So I don't think this is that different in that way.

I also noted that the chairman mentioned some of the organizations that are supporting this bill, including the Association of Chiefs of Police, the major cities' chiefs, the National District Attorneys' Association. Does it surprise you that these law enforcement groups are supporting this bill?

ATTY GEN. HOLDER: No. I think there is a pretty widespread agreement that there is the need for this legislation, that there has been the need for this legislation for an extended period of time, that the problem of hate crimes is one that is a recurring one. The problem is not going away. The number of 80,000 over the course of the last decade, the increase in violence focused on people of Hispanic extraction, there are clear needs for this kind of legislation. And that's why I think the support, the widespread support you see for this is not surprising.

SEN. KLOBUCHAR: The bill is currently written -- includes a five-year statute of limitations on hate crime prosecutions. What's the Department view of that provision of the five-year statute of limitations?

ATTY GEN. HOLDER: We actually think that, I think, the House provision is actually a little bit better. These are cases that are not easily put together, and the House version that has a seven-year statute of limitations, except for those offenses involving death, where there would be no statute of limitations, is a better way to proceed.

SEN. KLOBUCHAR: So you'd prefer to have the seven-year over the five-year.

ATTY GEN. HOLDER: Yes, we would.

SEN. KLOBUCHAR: All right, thank you very much, Mr. Attorney General.

SEN. LEAHY: Thank you.

Senator Cardin.

SEN. BENJAMIN CARDIN (D-MD): Thank you, Mr. Chairman.

Attorney General Holder, thank you very much for your leadership on this issue. I strongly support this legislation.

When a person has been victimized by a hate crime, it's not only the victim who suffers. The entire community is diminished. And recent trends are disturbing, and I think it's important for the federal government to speak to this issue as a priority, and the passage of this legislation would do exactly that.

I want to talk a little bit about the relationship between the federal government and the state, the issue that Senator Sessions has raised and Senator Coburn and others, and really talk about the philosophy of this bill, because I think it complements the states.

First, as Senator Klobuchar has said, it's a backstop. So there's opportunity for the state to act. If the state acts and there's no need for federal involvement, my expectation is there would be no federal involvement. If the states had the capacity to deal with this issue, that's the preferred route.

The second part of this legislation is uniformity. There are states that do not have hate crime statutes. There are states that do not include hate generated by a person's sexual orientation. And there's a need for uniformity, a uniform message in our nation.

And the third, that I don't know if we've talked enough about at this hearing, is the financial capacity issue. There are a lot of local jurisdictions that are really strapped for funds. They don't have the resources to investigate. And we all understand the capacity of the federal government. It's not unlimited, but it certainly provides a stronger network for investigation and prosecution than a state can dedicate to one particular crime or to a situation that needs an extensive investigation.

In this legislation, there is direct help to local government. There are programs that provide authorized grants to help state, local and tribal law enforcement officials to manage the high cost of investigating and prosecuting hate crimes. So we recognize that by providing direct resources that authorizes the Justice Department to award grants to state, local and tribal authorities for programs that combat hate crimes committed by juveniles, including programs to train local law enforcement.

So I think we might be losing the focus of this legislation, which is, yes, to go after those who perpetrate hate crimes, but to work with our local governments to backstop if they're unable, to have a uniform statute, and to provide the resources so that we can bring a coordinated law enforcement effort against those who perpetrate hate crimes.

I want to just give you an opportunity to respond to that, whether my reading of this law is correct, that this isn't to be in conflict with local law enforcement but to complement local law enforcement.

ATTY GEN. HOLDER: Senator, I think you have it exactly right. We don't seek to replace our state and local partners. We want to complement them. We want to help them. And I think that what you've indicated is a good way of looking at this. There is a component of this bill, part of this bill, that gives direct assistance to our state and local counterparts to help them be more effective in prosecuting and dealing with these kinds of crimes.

This also gives the federal government the ability, in those instances where a state or a local jurisdiction doesn't have the technological wherewithal to prosecute one of these cases, to help us -- to help them in a way that is now difficult because of the requirement that, under the present law, there has to be an involvement in one of these federally designated activities. The new bill would do away with those six federally designated activities and would give the federal government a greater capacity to assist our state and local counterparts.

So I think that's one way that we should not lose focus. I think you're exactly right. We should not lose sight of the fact that, in a lot of ways, this statute would help state and local jurisdictions who want to prosecute these kinds of cases.

SEN. CARDIN: I think the changing -- broadening the ability of the federal government to respond makes this more of a seamless approach between the federal authorities and local authorities. And I appreciate you bringing that to our attention.

I just would point out, there's no state immune from the vulnerability of someone who would commit a hate crime. So we do need a national strategy. This is not a situation where it's concentrated in one state or one region of our country. Every state and every region is vulnerable, and I think we do need the presence of the federal government. And I thank you for your leadership on this issue.

ATTY GEN. HOLDER: Thank you.

SEN. LEAHY: Thank you, Senator Cardin.

I was going to let the -- I know the attorney general has a tight schedule and he worked this in as an accommodation to Senator Sessions' request. But before I let him go, I understand that Senator Sessions needs a couple more minutes.

SEN. SESSIONS: Well, yes, just a minute. I would just note that perhaps the authorization of funding to create task forces and studies of these kind of crimes would be an appropriate role for the federal government. But with regard to the soldier that Senator Coburn asked you about, he's not covered, Mr. Attorney General, by the act. He's not one of these groups, unless he was a homosexual advocating that and that caused the attack. So he wouldn't be covered.

There are lots of other groups, people, decent people, that might need additional federal protection if the federal government had all the money in the world and all the time to investigate this. The Matthew Shepard case, I would just note, the individual was prosecuted in Wyoming. Two life sentences were obtained, and they didn't have a hate crimes act. It was the kind of crime that should have been vigorously prosecuted, and it was. Perhaps we could consider an option to allow more severe sentencing guidelines for people who do just mindless hateful acts. Maybe you could word that in a way that would be sufficient.

I'll ask you again. Cite me some cases of significance that have not been properly prosecuted in the last five years.

ATTY GEN. HOLDER: Well, as I said, I think there are statutes -- there are cases that are noted in my written testimony. But here's the way that I would --

SEN. SESSIONS: Well, no, no, no. I think this is important. You cited a California case. I understand that defendant was convicted of an assault, if not his -- but every day crimes are prosecuted in state court that may not result in a conviction in which the prosecutor or I would like, but we don't pick that up in federal court with double jeopardy principles and just prosecute them again in federal court.

But it doesn't seem to me -- you say -- you mentioned three cases. I'll look at those and review those. But frankly, that's not a very big number. And isn't it true that the vast majority of these crimes that you cite as hate crimes, which have dropped, according to the statistics, from 1998 to 2007, that the vast majority of those are defacement or vandalism or those kind of crimes?

ATTY GEN. HOLDER: The reality is that we have had, over the last decade, 80,000 crimes directed against people because of their race, color, religion or national origin. That, it seems to me, is a serious problem. The vast majority of those cases will be handled by the states and by our local partners. What we're looking for is an ability to backstop their efforts and come up with a way in which we assist them.

It seems to me that this is a question, in a lot of ways, of conscience. What is it that we consider important? How are we going to use federal resources, the limited resources that we have? It seems to me that to protect groups of people who are the objects, the subjects of violence, simply because of who they are, simply because of the color of their skin, simply because of their ethnicity, simply because of their sexual orientation, their gender, their disability, those kinds of crimes are worthy of consideration, examination by the federal government. We should have an ability to become involved in those cases. We don't seek to replace state and local --

SEN. SESSIONS: I would just ask you this. Why don't we make all crimes federal crimes then?

ATTY GEN. HOLDER: There are substantial --

SEN. SESSIONS: I mean, seriously.

ATTY GEN. HOLDER: No, and seriously, there are substantial numbers of crimes that can be brought, as you know -- you're a federal prosecutor -- that can be brought in the federal courts as well as the state courts, and it doesn't happen.

SEN. SESSIONS: Well, I think you argue your case, and I listen to it. I'm not persuaded. I want to look at the numbers of prosecutions not occurring in an effective way. I think that's the fundamental test as to whether or not we should go forward with this legislation. In the past I have not concluded it was. And I find it odd that Senator Hatch's proposal for years to do a study of this has not been accepted.

SEN. LEAHY: Thank you.

We're going -- whoops, I guess we did have one other senator. I was about to release you.

I would note, when we talk about the recruiter who was killed, we have very, very specific federal laws for crimes against members of the military and veterans that can be prosecuted very fully. I think that most people in the military would much prefer we use those laws, because they're very, very specific and they can be used in the case of the recruiter who was murdered.

Senator Schumer.

SEN. SESSIONS: But not a local police officer, not a sheriff, not a deputy.

SEN. CHARLES SCHUMER (D-NY): Thank you, Mr. Chairman.

I'm not going to keep you long, Mr. Attorney General. I appreciate your being here. I appreciate the chairman holding the hearing.

I just wanted to add my voice to the many who have said that I hope we can move this legislation. And I have a statement, Mr. Chairman, that I hope will be added into the record at this point to save people time.

SEN. LEAHY: Without objection.

SEN. SCHUMER: Just one other point. It's hard for me to understand in legislation, whatever your views are on the broader issues, legislation that says you cannot physically harm somebody because of their race, their religion, their ethnicity or their sexual orientation.

It's hard for me to understand how anybody can oppose that, to say it's okay -- if we vote down this legislation, in a certain sense we are saying it is okay to physically harm people who you don't like because of who they are. And that's a bad thing. And I hope we'll move this legislation.

And I yield back my time.

SEN. LEAHY: Thank you.

And Attorney General Holder, thank you very much.

ATTY GEN. HOLDER: Thank you.


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