Letter to the House on the Kennedy Hate Crimes Amendment to Defense Authorization Bill

RE: Need for Safeguards in the Kennedy Hate Crimes
Amendment to the Defense Authorization Bill

Dear Representative:

Recent news reports have mistakenly cited the ACLU as supporting the federal hate crimes legislation. In order to avoid any confusion, we would like to take this opportunity to explain our position on two important shortcomings of the Senate-passed hate crimes amendment. The ACLU is not opposing the non-binding motion to instruct the DOD authorization conferees, but rather we are urging members to request that the conferees accept two important changes to the legislation. 

The ACLU believes that the Congress can and should expand federal jurisdiction to prosecute criminal civil rights violations when state and local governments are unwilling or unable to prosecute. Invidious discrimination--including the selection of a person for violent harm because of his or her race, color, religion, national origin, gender, sexual orientation, or disability--cannot claim the protection of the Constitution. The increase in such criminal civil rights violations warrants a legislative response.  

But the ACLU does not support the Kennedy amendment because its significant expansion of federal criminal authority does not include sufficient checks against prosecutorial overreaching. Specifically, we are urging the conferees to modify the Kennedy amendment by (i) excluding evidence of speech or organizational membership that is unrelated to the crime and (ii) further limiting the federal government's jurisdiction to prosecute when state or local prosecutors are diligently investigating and prosecuting a person for the same crime.  

In our diverse society with a strong tradition of free speech and free association, the need for such safeguards is critical. Violent crimes sometimes occur where the suspect and victim differ in sex, race, ethnicity, or another characteristic. Some of those crimes are bias crimes, but others are not. The two amendments that the ACLU is suggesting will set a higher, but more appropriate, threshold for which crimes will be prosecuted as federal hate crimes and which will be punished under existing state laws.  

A membership card found in a wallet, a magazine found in a glove compartment, or a photo of a suspect at a rally or protest years ago should stay out of the courtroom unless the organization, magazine, or rally had a role in the chain of events that led to the violent act. A prosecutor should not be able to make or bolster a hate crime prosecution based on such unrelated evidence. If the government has a strong case, it should not need that evidence.  

The ACLU also urges that the conferees enhance the Kennedy amendment's certification requirements for exercising federal jurisdiction. In a criminal system that permits prosecutions under both federal and state law, we believe that an important way to avoid subjecting defendants to two prosecutions for the same crime is to place the primary responsibility for criminal prosecutions on the states instead of the federal government. The ACLU urges the conferees to add--by statute--the same requirement that the Justice Department imposes on itself by its internal policies of explicitly limiting federal prosecutorial authority to those cases that are in the public interest and necessary to secure substantial justice.

The Need to Provide Stronger Protection of Free Speech

The ACLU strongly urges the conferees to amend the Kennedy hate crimes amendment to limit its potential chilling effect on constitutionally protected speech. A change to the Kennedy amendment to provide that:

In any prosecution under this section, (i) evidence proving the defendant's mere abstract beliefs or (ii) evidence of the defendant's mere membership in an organization, shall not be admissible to establish any element of an offense under this section.

will reduce or eliminate the possibility that the federal government could obtain a criminal conviction on the basis of evidence of speech that had no role in the chain of events that led to any alleged violent act proscribed by the statute.  

On its face, the Kennedy amendment punishes only the conduct of intentionally selecting another person for violence because of that person's race, color, national origin, religion, gender, sexual orientation, or disability. The prosecution must prove the conduct of intentional selection of the victim. Thus, the Kennedy amendment, like the present principal criminal civil rights statute, 18 U.S.C. § 245 ("section 245"), punishes discrimination (an act), not bigotry (a belief).  

The federal government usually proves the intentional selection element of section 245 prosecutions by properly introducing ample evidence related to the chain of events. For example, in a recent section 245 prosecution based on race, a federal court of appeals found that the prosecution met its burden of proving that the defendant attacked the victim because of his race by introducing admissions that the defendant stated that "he had once killed a nigger queen," that he attacked the victim "[b]ecause he was a black fag," and by introducing evidence that the defendant allowed a white gay man to escape further attack, but relentlessly pursued the black gay victim.  

However, a statutory safeguard against the admission of unrelated speech or membership evidence is necessary because a defendant otherwise has little protection against the unwarranted admission of evidence. The Federal Rules of Evidence give judges wide discretion in determining whether evidence is relevant and whether its relevance outweighs any unfair prejudice to the defendant. Moreover, even if the judge abuses his or her discretion in admitting evidence, an appellate court usually reverses the trial court's decision only if admission of the evidence determined the outcome of the case. As a result, only a provision in the statute itself can ensure that evidence that had no role in the chain of events that led to the crime will stay out of the courtroom.  

Although the Justice Department maintains that it usually avoids attempting to introduce evidence proving nothing more than that a person holds racist or other bigoted views, it has at least occasionally introduced such evidence. In at least one decision, a federal court of appeals expressly found admissible such evidence that was wholly unrelated to the chain of events that resulted in the violent act. United States v. Dunnaway, 88 F.3d 617 (8th Cir. 1996). The court upheld the admissibility of a tattoo of a skinhead group on the inside lip of the defendant because "[t]he crime in this [section 245] case involved elements of racial hatred." Id. at 618. The tattoo was admissible even in the absence of any evidence in the decision linking the skinhead group to the violent act.  

The decision admitting that evidence of a tattoo confirmed our concerns expressed in the ACLU's brief filed with the Supreme Court in support of the Wisconsin hate crimes penalty enhancement statute. In asking for guidance from the Court on the applicability of such statutes, the ACLU stated its concern that evidence of speech should not be relevant unless "the government proves that [the evidence] is directly related to the underlying crime and probative of the defendant's discriminatory intent." The ACLU brief urged that, "[a]t a minimum, any speech or association that is not contemporaneous with the crime must be part of the chain of events that led to the crime. Generalized evidence concerning the defendant's racial views is not sufficient to meet this test."  

The ACLU's concern with the Kennedy amendment is that we will see even more such evidence admitted in section 245 prosecutions if the Kennedy amendment is enacted without an evidentiary restriction. Many of the arguments made in favor of expanding section 245 are very different than the arguments made in favor of enacting section 245 nearly 31 years ago. At that time, the focus was on giving the federal government jurisdiction to prosecute numerous murders of African-Americans, including civil rights workers, which had gone unpunished by state and local prosecutors. The intent was to have a federal backstop to state and local law enforcement.  

Although the Kennedy amendment will also serve that important purpose in creating federal jurisdiction, its proponents are focusing on "combating hate," fighting "hate groups," and identifying alleged perpetrators by their membership in such groups--even in the absence of any link between membership in the group and the violent act. Those arguments are very different from the arguments made in support of section 245 when it passed as an important part of the historic Civil Rights Act of 1968.  

The danger is that--after a debate focused on combating "hate"--courts, litigants, and jurors applying an expanded and more powerful section 245 may be more likely to believe that speech-related evidence is a proper basis for proving the intentional selection element of the offense, even when it was unrelated to the chain of events leading to a violent act. The focus may be on proving the selection element by showing "guilt by association" with groups whose bigoted views we may all find repugnant, but which may have had no role in committing the violent act. We should add that evidence of association could also just as easily focus on many groups representing the very persons that the Kennedy amendment was drafted to protect. ¹ Our suggested amendment will preclude all such evidence from becoming the basis for prosecution, unless it was part of the chain of events leading to the violent act.  

However, the proposed evidentiary amendment is not overly expansive. By inserting "mere" before "abstract beliefs" and "membership in an organization," the provision will bar only evidence that had no direct relationship to the underlying violent offense. It will have no effect on the admissibility of evidence of membership or belief that bears such a direct relationship to the underlying crime. Thus, the proposal will not bar all evidence of membership or belief.  

Finally, we recognize that statutory restrictions on the admissibility of evidence in criminal matters are not common. However, such restrictions are not without precedent. In fact, the basic structure for the new paragraph is from 18 U.S.C.A. § 2101(b), which defines admissible evidence for an element of the federal riot statute. We believe that the potential for misuse of an expanded section 245 is significant enough to warrant a statutory restriction on the admissibility of certain evidence.

The Importance of Deferring to Diligent State Prosecutors

The new certification requirement in the Kennedy amendment has less of the protection that the certification requirement in 18 U.S.C. § 245 provides against unwarranted dual prosecutions of the same defendant. In section 245, the Attorney General, Deputy Attorney General, Associate Attorney General, or a designated Assistant Attorney General must certify that a federal prosecution "is in the public interest and necessary to secure substantial justice." By contrast, the certification requirement in the Kennedy amendment requires one of the designated Justice Department officials, upon reasonable belief that a violation of the act occurred, to certify that federal jurisdiction is appropriate because "(A) the State does not have jurisdiction or does not intend to exercise jurisdiction; (B) the State has requested that the Federal Government assume jurisdiction; (C) the State does not object to the Federal Government assuming jurisdiction; or (D) the verdict obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence" (emphasis added).  

Thus, unlike the certification requirement in section 245, the Kennedy amendment does not require any certification that a federal prosecution is in the public interest or is necessary to secure substantial justice. In fact, unless the state prosecutors specifically refuse the federal government's jurisdiction or there is a verdict or sentence on state charges that satisfies the federal government, the federal government can always exercise jurisdiction under the Kennedy amendment. For that reason, the ACLU urges the Senate to amend the Kennedy hate crimes legislation to add an additional certification requirement that:

[The Attorney General must certify that the] prosecution by the United States is in the public interest and necessary to secure substantial justice.

The ACLU is concerned that, without requiring federal certification that a federal prosecution is in the public interest and necessary to secure substantial justice, the certification provision in the Kennedy amendment could result in an unwarranted expansion of federal authority to prosecute defendants--even when a competent state prosecution is available.  

Thank you for your consideration of our views on this issue. Please do not hesitate to call us if you have any questions regarding this legislation.  

Very truly yours,

Laura W. Murphy
Director

Christopher E. Anders
Legislative Counsel

Endnote:

 1 For example, many of the principal First Amendment association decisions arose from challenges to governmental investigations of civil rights and civil liberties organizations. See, e.g., Gibson v. Florida Legislative Investigation Committee, 372 U.S. 539 (1962) (holding that the NAACP could refuse to disclose its membership list to a state legislature investigating alleged Communist infiltration of civil rights groups); Bates v. City of Little Rock, 361 U.S. 516 (1960) (reversing a conviction of NAACP officials who refused to comply with local ordinances requiring disclosure of membership lists); NAACP v. State of Alabama, 357 U.S. 449 (1958) (holding as unconstitutional a judgment of contempt and fine on the NAACP for failure to produce its membership lists); New Jersey Citizen Action v. Edison Township, 797 F.2d 1250 (3rd Cir. 1986) (refusing to require the fingerprinting of door-to-door canvassers for a consumer rights group), cert. denied, sub nom. Piscataway v. New Jersey Citizen Action, 479 U.S. 1103 (1987); Familias Unidas v. Briscoe, 619 F.2d 391 (5th Cir. 1980) (refusing a request to compel the disclosure of the membership list of a public school reform group); Committee in Solidarity with the People of El Salvador v. Sessions, 705 F.Supp. 25 (D.D.C. 1989) (denying a request for preliminary injunction against FBI's dissemination of information collected on foreign policy group); Alliance to End Repression v. City of Chicago, 627 F.Supp. 1044 (1985) (police infiltrated and photographed activities of a civil liberties group and an anti-war group).