Amendment to S.1390, the National Defense Authorization Act for Fiscal Year 2010
On July 13, 2009, the Senate began consideration of S.1390, the National Defense Authorization Act for Fiscal Year 2010. On July 15, Senator Leahy, Chairman of the Senate Committee of the Judiciary, is expected to offer the Matthew Shepard Hate Crimes Prevention Act (“the Hate Crimes Prevention Act”) as an amendment to S.1390. This bill was originally offered on April 28 by Senator Kennedy as S.909.
The Hate Crimes Prevention Act would strengthen the ability of federal, state, local, and tribal governments to investigate and prosecute hate crimes based on race, color, national origin, religion, sexual orientation, gender, gender identity, or disability. The bill would authorize grants to meet state, local, and tribal expenses involved in investigating and prosecuting hate crimes. The law would also increase the federal government’s ability to monitor hate crimes by expanding the hate crimes statistics collected by the Federal Bureau of Investigation.
Findings. In summary, the Hate Crimes Prevention Act finds that:
· Hate crimes pose a serious and widespread national problem, which impact not only the actual victim but the community sharing the targeted traits of the victim;
· Though state and local authorities will continue to be responsible for prosecuting the bulk of these crimes, localities would benefit from federal assistance;
· Existing federal law is inadequate to provide assistance to localities;
· Hate crimes substantially affect interstate commerce;
· Eliminating violence motivated by race, religion, and national origin would aid in the effort to eliminate the badges, incidents, and relics of slavery; and
· Federal jurisdiction over hate crimes is needed to enable federal, state, and local authorities to partner to investigate and prosecute these crimes.
Support for Criminal Investigations and Prosecutions by State, Local, and Tribal Law Enforcement Officials. The Hate Crimes Prevention Act would authorize the Attorney General to generally provide technical, forensic, prosecutorial, and other forms of assistance to a state, local, or tribal enforcement agency in the investigation or prosecution of 1) a violent crime that 2) constitutes a felony and 3) is motivated by the actual or perceived race, color, religion, national original, gender, sexual orientation, gender identity, or disability of the victim, or is otherwise in violation of a local hate crime law. Priority should be given to those crimes by offenders who have committed crimes in more than one state and to rural jurisdictions that may have difficulty covering the expenses of a hate crime investigation or prosecution.
The legislation would specifically authorize $5 million for each of Fiscal Years 2010 and 2011 for the Justice Department to provide one year grants, under $100,000 to state, local, and tribal law enforcement for expenses relating to the investigation or prosecution of hate crimes.
Hate Crimes Committed by Juveniles Grant Program. The Hate Crimes Prevention Act would authorize grants to state, local, and tribal programs designed to combat hate crimes committed by juveniles, including programs to train local law enforcement officers in identifying, investigating, prosecuting, and preventing hate crimes. The legislation would authorize necessary sums to carry out this program.
Authorization for Additional Personnel to Assist State, Local, and Tribal Law Enforcement. The Hate Crimes Prevention Act would authorize necessary sums for Fiscal Years 2010, 2011, and 2012 to increase the number of Justice Department personnel to prevent and respond to the alleged crimes enumerated in this bill.
Prohibition of Certain Hate Crimes Acts. The Hate Crimes Prevention Act would create a new section of United States Code Title 18, Chapter 13. Section 249 would eliminate the requirement in current federal hate crimes law that the victim be engaging in a “federally protected activity.” TheHate Crimes Prevention Act would also expand the federal government’s ability to prosecute hate crimes motivated by disability, gender, sexual orientation, or gender identity. The law would provide that anyone who willfully causes or attempts to cause bodily injury on the basis of the actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability of the victim be imprisoned for not more than 10 years, or, in the case of death, kidnapping, or sexual abuse (including attempts of these crimes) imprisoned for any term of years or for life.
The law would provide that for hate crimes motivated by religion, national origin, gender, sexual orientation, gender identity, or disability, the crime must: 1) take place during the course of, or as a result of, the victim’s or defendant’s travel across a state line or national border; 2) involve the defendant using a channel, facility, or instrumentality of interstate or foreign commerce; 3) involve the defendant using a firearm, dangerous weapons, explosive or incendiary device, or other weapon that has traveled in interstate or foreign commerce; OR 4) involve an interference with the victim’s commercial or other economic activity or otherwise affect interstate or foreign commerce. Crimes occurring under the special maritime or territorial jurisdiction of the United States would also be covered.
The Hate Crimes Prevention Act would require that prior to a federal prosecution of a hate crime under Section 249, the Attorney General certify that: 1) the state does not have jurisdiction; 2) the state has asked the federal government to assume jurisdiction; 3) the verdict or sentence obtained at the state level leaves the federal interest in eradicating bias-motivated violence un-vindicated; or 4) a federal prosecution is in the public interest and necessary to secure substantial justice. The law does not, however, limit the federal government’s authority to investigate possible hate crimes.
The Hate Crimes Prevention Act wouldmaintain the existing definitions in Title 18 for “bodily injury” (section 1365(h)(4)), “explosive or incendiary device” (section 232), and “firearm” (section 921(a)). The legislation would, however, specify that “bodily injury” cannot include solely emotional or psychological harm to the victim. The law would define “gender identity” for the purposes of Chapter 13 as “actual or perceived gender-related characteristics.”
Statistics. The Hate Crimes Prevention Act would require the Federal Bureau of Investigation to gather statistics on hate crimes motivated by the victim’s actual or perceived gender and gender identity as well as hate crimes committed by or against juveniles. Current law already requires that the FBI gather hate crimes statistics based on race, color, national origin, religion, and sexual orientation.
Rules of Construction. The Hate Crimes Prevention Act would permit a court construing the legislation to consider relevant evidence of speech, beliefs, or expressive conduct as evidence of an element of a hate crime or as otherwise admissible under the Federal Rules of Evidence.
The legislation would explicitly state that nothing in the bill should be used limit or restrict First Amendment protected speech or expressive conduct or activity, including the exercise of religion or peaceful demonstrations.
The measurewould also explicitly prohibit a prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.
On July 15, 2009, Senator Leahy, Chairman of the Senate Committee of the Judiciary, is expected to offer the Matthew Shepard Hate Crimes Prevention Act (“the Hate Crimes Prevention Act”) as an amendment to S.1390, the National Defense Authorization Act for Fiscal Year 2010.
The Hate Crimes Prevention Act was separately offered on April 28 by Senator Kennedy as S.909. On June 25, the Senate Judiciary Committee held a hearing on S.909 and received testimony from Attorney General Eric Holder amongst others. S.909 is similar to a bill in the 110th Congress by the same name that was included in the Senate-passed version of H.R.1585, the National Defense Authorization Act for Fiscal Year 2008 (separately introduced as S.1105). The language was not, however, included in the legislation that was eventually signed into law.
The House passed a similar version of the Hate Crimes Prevention Act on April 29, entitled the Local Law Enforcement Hate Crimes Prevention Act of 2009 (H.R.1913), on a vote of 249 to 175.
Second degree amendments are possible to the Hate Crimes Prevention Act amendment to S.1390. Information will be sent to the DPC e-mail lists.
As of this writing, no official Statement of Administration Policy has been issued for the Hate Crimes Prevention Act amendment to S.1390, S.909, or H.R.1913. Attorney General Holder, on behalf of the Administration, did, however, express strong support for S.909 during his testimony before the Senate Judiciary Committee on June 25, which can be found here. The Justice Department also issued a views letter in support of the legislation on June 23, which can be found here. Moreover, President Obama issued a statement on April 28 urging passage of H.R.1913 in the House, and served as an original co-sponsor of the bill in the 110th Congress when he was a Senator.
Additional Suggested Reading
For more information on federal hate crime legislation, please see the Congressional Research Service report “Hate Crime Legislation,” RL33403 (May 8, 2009). Those inside the Senate firewall should also visit the resources page of the DPC website.
 Federally protected activities include: 1) attending or enrolling in a public school or public college; 2) participating in a state or local government activity or program etc; 3) applying for public or private employment; 4) jury service; 5) using a facility of interstate commerce or common carrier; and 6) enjoying public accommodations or places of exhibition or entertainment.
 Differences between the 111th and 110th Congress versions of the Hate Crimes Prevention Act include more precise certification guidelines, a new Rule of Construction provision that states the explicit protection of already constitutionally protect rights (in lieu of the Rule of Evidence provision that was included previously), an explicit statement that the bill only applies to violent crimes causing or attempting to cause bodily injury, and other minor technical corrections suggested by the Justice Department.