Before the
Senate Committee on the Judiciary
Submitted by
Christopher E. Anders, Legislative Counsel
May 11, 1999
I. INTRODUCTION
The American Civil Liberties Union respectfully submits this statement to urge the Senate Committee on the Judiciary to respond by legislation to the continuing problem of an inadequate state and local response to criminal civil rights violations, but also to request that the Committee amend S. 622, the Hate Crimes Prevention Act of 1999, to limit its potential chilling effect on constitutionally protected speech. 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, while also precluding evidence of mere abstract beliefs or mere membership in an organization from becoming a basis for such prosecutions.
The ACLU has a long record of support for stronger protection of both free speech and civil rights. Those positions are not inconsistent. In fact, vigilant protection of free speech rights historically has opened the doors to effective advocacy for expanded civil rights protections.
Six years ago, the ACLU submitted a brief to the Supreme Court urging the Court to uphold a Wisconsin hate crime enhancement statute as constitutional. However, the ACLU also asked the Court "to set forth a clear set of rules governing the use of such statutes in the future." The ACLU warned the Court that "if the state is not able to prove that a defendant's speech is linked to specific criminal behavior, the chances increase that the state's hate crime prosecution is politically inspired." The draft amendment described in this statement will help avoid that harm.
This statement explains the need for legislation to expand federal authority to prosecute federal civil rights violations, and the reason for adding an evidentiary restriction to section 245 of the federal criminal code. The ACLU will strongly support passage of S. 622 if the Committee adds the evidentiary restriction and avoids any changes to S. 622's substantive provisions.
The ACLU supports providing remedies against invidious discrimination and urges that discrimination by private organizations be made illegal when it excludes persons from access to fundamental rights or from the opportunity to participate in the political or social life of the community. The serious problem of crime directed at members of society because of their race, color, religion, gender, national origin, sexual orientation, or disability merits legislative action.
Such action is particularly timely as a response to the rising tide of violence directed at people because of such characteristics. Those crimes convey a constitutionally unprotected threat against the peaceable enjoyment of public places to members of the targeted group.
Pursuant to the Hate Crime Statistics Act, the Federal Bureau of Investigation annually collects and reports statistics on the number of bias-related criminal incidents reported by local and state law enforcement officials. In 1996, based on reports from law enforcement agencies covering 84% of the nation's population, the FBI reported 8,759 incidents covered by the Act. 5,396 of those incidents were related to race, 1,401 to religion, 1,016 to sexual orientation, 940 to ethnicity or national origin, and six to multiple categories.
Existing federal law does not provide any separate offense for violent acts based on race, color, national origin, or religion, unless the defendant intended to interfere with the victim's participation in certain enumerated activities. 18 U.S.C.A. § 245(b)(2). During hearings last year in the Senate and House of Representatives, advocates for racial, ethnic, and religious minorities presented substantial evidence of the problems resulting from the inability of the federal government to prosecute crimes based on race, color, national origin, or religion without any tie to an enumerated activity. Those cases include violent crimes based on a protected class, which state or local officials either inadequately investigated or declined to prosecute.
In addition, existing federal law does not provide any separate offense whatsoever for violent acts based on sexual orientation, gender, or disability. The exclusion of sexual orientation, gender, and disability from section 245 of the criminal code can have bizarre results. For example, in an appeal by a person convicted of killing an African-American gay man, the defendant argued that "the evidence established, if anything, that he beat [the victim] because he believed him to be a homosexual and not because he was black." United States v. Bledsoe, 728 F.2d 1094, 1098 (8th Cir. 1984), cert. denied, 469 U.S. 838 (1984). Among the evidence that the court cited in affirming the conviction because of violence based on race, was testimony that the defendant killed the black gay victim, but allowed a white gay man to escape. Id. at 1095, 1098. Striking or killing a person solely because of that person's sexual orientation would not have resulted in a conviction under that statute.
In addition to the recent accounts of the deaths of Matthew Shepard and Billy Jack Gaither, other reports of violence because of a person's sexual orientation include:
The problem of crimes based on gender is also persistent. For example, two women cadets at the Citadel, a military school that had only recently opened its doors to female students, were singled out and "hazed" by male cadets who did not believe that women had a right to be at the school. Male cadets allegedly sprayed the two women with nail polish remover and then set their clothes ablaze, not once, but three times within a two month period. One male cadet also threatened one of the two women by saying that he would cut her "heart out" if he ever saw her alone off campus.
Federal legislation addressing such criminal civil rights violations is necessary because state and local law enforcement officers are sometimes unwilling or unable to prosecute those crimes because of either inadequate resources or their own bias against the victim. The prospect of such failure to provide equal protection of the laws justifies federal jurisdiction. For example, state and local law enforcement officials have often been hostile to the needs of gay men and lesbians. The fear of state and local police -- which many gay men and lesbians share with members of other minorities -- is not unwarranted. For example, until recently, the Maryland state police department refused to employ gay men or lesbians as state police officers. In addition, only last year, a District of Columbia police lieutenant who headed the police unit that investigates extortion cases was arrested by the FBI for attempting to extort $10,000 from a married man seen leaving a gay bar. Police officers referred to the practice as "fairy shaking." The problem is widespread. In fact, the National Coalition of Anti-Violence Programs reports several hundred anti-gay incidents allegedly committed by state and local law enforcement officers annually. The federal government clearly has an enforcement role when state and local governments fail to provide equal protection of the laws.
Despite the need to amend the principal federal criminal civil rights statute, 18 U.S.C. § 245, to expand federal jurisdiction to address the problem of an inadequate state and local response to criminal civil rights violations, the ACLU cannot support S. 622 unless the Committee amends the legislation to limit its potential chilling effect on constitutionally protected speech. Specifically, the ACLU strongly urges the Committee to amend S. 622 by adding the following evidentiary provision:
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.
This provision 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, S. 622 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, S. 622, like the present 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, as discussed above, 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.
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 S. 622 is that we will see even more such evidence admitted in section 245 prosecutions if S. 622 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 S. 622 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. The arguments are even applied retroactively. During hearings before the Committee last year, the Justice Department referenced section 245, which passed as an important part of the Civil Rights Act of 1968, as "the federal hate crimes statute."
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 S. 622 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.
For the foregoing reasons, the ACLU urges the Committee to amend S. 622 to limit its potential chilling effect on constitutionally protected speech, but also to use the legislation to expand federal jurisdiction to address the problem of an inadequate state and local response to criminal civil rights violations. The ACLU appreciates this opportunity to present our concerns.
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).