ACLU Proposed Amendment to HR 1082, The Hate Crimes Prevention Act of 1999 Letter
March 16, 1999
The Honorable Henry J. Hyde
Chairman
Committee on the Judiciary
2138 Rayburn House Office Building
Washington, D.C. 20515
The Honorable John Conyers, Jr.
Ranking Minority Member
Committee on the Judiciary
B-351C Rayburn House Office Building
Washington, D.C. 20515
Re: Proposed amendment to H.R. 1082, the Hate Crimes Prevention Act of 1999
Dear Chairman Hyde and Congressman Conyers:
As the House Judiciary Committee begins consideration of H.R. 1082, the Hate Crimes Prevention Act of 1999, the American Civil Liberties Union urges the Committee to amend the legislation to limit its potential chilling effect on constitutionally protected speech activities.
The ACLU believes that the substantive provisions of H.R. 1082 will help address the continuing problem of an inadequate state and local response to criminal civil rights violations, by amending the principal federal criminal civil rights statute, 18 U.S.C. § 245. However, we have concerns that the amended statute could have a chilling effect on constitutionally protected speech activities. For that reason, the ACLU strongly urges the Committee to amend H.R. 1082 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-related activities that had no role in the chain of events that led to any alleged violent act proscribed by the statute.
On its face, H.R. 1082 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, H.R. 1082, 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, 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. The court found that the Constitution and the Federal Rules of Evidence did not preclude admission of the evidence.
The ACLU's concern is that we will see even more such evidence admitted in section 245 prosecutions if H.R. 1082 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 H.R. 1082 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 H.R. 1082 was drafted to protect. In fact, federal law enforcement, under both Democratic and Republican Administrations, used their authority under statutes other than section 245 to investigate several of the groups now supporting the legislation. 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.
The ACLU appreciates your consideration of this request for an amendment to H.R. 1082. Please do not hesitate to contact us with any questions or comments regarding this matter.
Sincerely,
Laura W. Murphy
Director
Christopher E. Anders
Legislative Counsel