The Federal government has an essential leadership role to play in confronting criminal activity motivated by prejudice and promoting prejudice reduction initiatives for schools and the community.

A. The Hate Crime Statistics Act (28 U.S.C. 534)

Enacted in 1990, the HCSA requires the Justice Department to acquire data on crimes which "manifest prejudice based on race, religion, sexual orientation, or ethnicity" from law enforcement agencies across the country and to publish an annual summary of the findings. In the Violent Crime Control and Law Enforcement Act of 1994,¹² Congress expanded coverage

12 Violent Crime and Law Enforcement Act of 1994, Pub. L. No. 103-322, 108 Stat. 1796 (codified as amended in scattered sections of 18, 21, 28, 42, etc....U.S.).

of the HCSA to require FBI reporting on crimes based on "disability."

Police officials have come to appreciate the law enforcement and community benefits of tracking hate crime and responding to it in a priority fashion. By compiling statistics and charting the geographic distribution of these crimes, police officials may be in a position to discern patterns and anticipate an increase in racial tensions in a given jurisdiction. Law enforcement officials can advance police-community relations by demonstrating a commitment to be both tough on hate crime perpetrators and sensitive to the special needs of hate crime victims.

The FBI documented a total of 4,558 hate crimes in 1991, reported from almost 2,800 police departments in 32 states. The Bureau's 1992 data, released in March 1994, documented 7,442 hate crime incidents reported from more than twice as many agencies, 6,181 -- representing 42 states and the District of Columbia. For 1993, the FBI reported 7,587 hate crimes from 6,865 agencies in 47 states and the District of Columbia. The FBI's 1994 statistics documented 5,932 hate crimes, reported by 7,356 law enforcement agencies across the country. The FBI's 1995 report documented 7,947 crimes reported by 9,584 agencies across the country.

The FBI's most recent HCSA report, for 2004, documented 7,649 hate crimes reported by 12,711 agencies across the country. The FBI report indicated that about 53 percent of the reported hate crimes were race-based, with 18 percent committed against individuals on the basis of their religion, 13 percent on the basis of ethnicity/national origin, 16 percent on the basis of sexual orientation, and 1 percent on the basis of disability. Approximately 36 percent of the reported crimes were anti-Black, 11 percent of the crimes were anti-White. The 954 crimes against Jews and Jewish institutions comprised 12 percent of the total -- and 69 percent of the reported hate crimes based on religion. Three percent of the crimes were anti-Asian, and just over 6 percent were anti-Hispanic. [For additional details, see the attached comparison of FBI hate crime statistics from 1991-2004 at Appendix E.]

Despite an incomplete reporting record over the early years of the Act, the HCSA has proved to be a powerful mechanism to confront violent bigotry against individuals on the basis of their race, religion, sexual orientation, ethnicity/national origin or disability -- and a spark for increased public awareness of the problem. Studies have demonstrated that victims are more likely to report a hate crime if they know a special reporting system is in place.

B. The Hate Crimes Sentencing Enhancement Act

Originally introduced as separate legislation by Rep. Charles Schumer (D-NY) and Sen. Dianne Feinstein (D-CA), this measure was enacted into law as Section 280003 of the Violent Crime Control and Law Enforcement Act of 1994. The provision directed the United States Sentencing Commission to provide a sentencing enhancement of "not less than 3 offense levels for offenses that the finder of fact at trial determines beyond a reasonable doubt are hate crimes." The provision defined a hate crime as "a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person." This measure, the Federal counterpart for state hate crime penalty-enhancement statutes, applies, inter alia, to attacks and vandalism which occur in national parks and on other Federal property.

In May 1995, the United States Sentencing Commission announced its implementation of a three-level sentencing guidelines increase for hate crimes, as directed by Congress. This amendment took effect on November 1, 1995.

C. The Violence Against Women Act of 1994 (42 U.S.C. 13981)

In September of 1994, the Violence Against Women Act of 1994 (VAWA), which is comprehensive legislation dealing with the increasing problem of violent crime against women, was passed by Congress. This law provides authority for domestic violence and rape crisis centers and for education and training programs for law enforcement and prosecutors. Under VAWA, "(a)ll persons within the United States shall have the right to be free from crimes of violence motivated by gender." One provision of VAWA is a new Federal civil remedy for victims of gender-based violent crimes which provides them with the right to compensatory and punitive damage awards as well as injunctive relief.

The League joined an amicus brief in Brzonkala v. Virginia Polytechnic, 935 F.

Supp. 779 (W.D. Va. 1996), which was one of the first cases to address the constitutionality of the Civil Rights Remedy. After the district court dismissed the case, ruling that the Civil Rights Remedy was unconstitutional, the U.S. Court of Appeals for the Fourth Circuit reversed. The Fourth Circuit held that Congress did have the power to enact the Civil Rights Remedy. That court now has agreed to rehear the case en banc. The Fourth Circuit's decision, though, is consistent with the decisions of all other courts ever to consider the matter. Doe v. Doe, 929 F. Supp. 608 (D. Conn. 1996), was the first case to uphold the constitutionality of the Civil Rights Remedy. Since then, five other courts have also held that the Remedy is constitutional. Nonetheless, challenges to the constitutionality of the Remedy continue. ADL recently joined an amicus brief in White and Bentley v. Gabri, Nos. 96-521 and 96-522 (D.R.I.), again arguing that the Remedy is constitutional.

D. The Church Arsons Prevention Act (18 U.S.C. 247)

The disturbing series of attacks against houses of worship in recent years has had a searing impact on the nation and served as another graphic reminder that America's long struggle against racial and religious intolerance is far from over. Although law enforcement investigators and private watchdog groups, like ADL, have seen no indication that these attacks are part of a national conspiracy of domestic terrorism directed by organized hate groups, we should not be comforted by this fact. If it is not a conspiracy, it only means that individuals in different parts of the country at different times, often inspired by hate, are acting independently to commit these crimes.

According to Justice Department officials, from January 1, 1995, to August 18, 1998, DOJ has opened 658 investigations of suspicious fires, bombings, and attempted bombings, and has made arrests in 225 of these incidents -- involving 301 subjects. Of the 658 attacks directed against houses of worship, 220 were predominately African-American institutions. Of the 301 persons arrested for these crimes, 44 have been African Americans, and 117 have been juveniles.

The Church Arsons Prevention Act, sponsored by Sens. Lauch Faircloth (R-NC) and Edward Kennedy (D-MA), and, in the House, by Reps. Henry Hyde (R-IL) and John Conyers (D-MI), was originally designed solely to facilitate Federal investigations and prosecutions of these crimes by amending 18 U.S.C. 247, a statute enacted by Congress in 1988 to provide Federal jurisdiction for religious vandalism cases in which the destruction exceeds $10,000. Hearings were held on both the impact of these crimes and the appropriate response of government. Federal prosecutors testified that the statute's restrictive interstate commerce requirement and its relatively significant damages threshold had been obstacles to Federal prosecutions.

Following the hearings, Congress found that "[t]he incidence of arson of places of religious worship has recently increased, especially in the context of places of religious worship that serve predominately African-American congregations." Legislators appropriately recognized that the nation's response to the rash of arsons should be more ambitious and comprehensive than mere efforts to ensure swift and sure punishment for the perpetrators.

In a welcome example of bipartisanship, both the House and the Senate unanimously approved legislation which broadened existing Federal criminal jurisdiction and facilitated criminal prosecutions for attacks against houses of worship, increased penalties for these crimes, established a loan guarantee recovery fund for rebuilding, and authorized additional personnel for BATF, the FBI, Justice Department prosecutors, and the Justice Department's Community Relations Service to "investigate, prevent, and respond" to these incidents. Recognizing that data collection efforts complement criminal prosecutions of hate crime offenders, Congress included a continuing mandate for the HCSA.

E. The Hate Crimes Prevention Act (HCPA): Expanding the Justice Department's Criminal Civil Rights Jurisdiction

The HCPA, sponsored by Sens. Kennedy (D-MA), Specter (R-PA), and Wyden (D-OR), and by Reps. Schumer (D-NY), and McCollum (R-FL), would amend Section 245 of Title 18 U.S.C., one of the primary statutes used to combat racial and religious bias-motivated violence. The current statute prohibits intentional interference, by force or threat of force, with the enjoyment of a Federal right or benefit (such as voting, going to school, or employment) on the basis of race, color, religion, or national origin. Under the current statute, the government must prove both that the crime occurred because of a person's membership in a protected group, such as race or religion, and because (not while) he or she was engaging in a Federally protected activity.

In its current form, the statute leaves Federal prosecutors powerless to intervene in bias-motivated crimes when they cannot establish the victim's involvement in a Federally protected activity. Nor can Federal authorities step in to act in cases involving death or serious bodily injury based on sexual orientation, gender, or disability-based bias when local law enforcement is not available. While states continue to play the primary role in the prosecution of bias-motivated violence, the Federal government must have jurisdiction to address those limited cases in which local authorities are either unable or unwilling to investigate and prosecute.

The legislation, which has attracted the support of a broad range of national civil rights groups, state and local government associations, and law enforcement organizations, would amend 18 U.S.C. 245 in two ways: First, it would provide new authority for Federal officials to investigate and prosecute cases in which the bias violence occurs because of the victim's real or perceived sexual orientation, gender, or disability. In addition, the measure would remove the overly restrictive obstacles to Federal involvement by permitting prosecutions without requiring proof that the victim was attacked because he or she was engaged in a Federally protected activity.

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