Mr. Chairman, Members of the Committee and Subcommittee, thankyou for the opportunity to speak today on the subject of crimesagainst the homeless. My name is Erik Luna, and I am a lawprofessor at Washington and Lee University School of Law and anadjunct scholar with the Cato Institute.1 I specializein criminal law, criminal procedure, and allied areas of law andpublic policy. It is an honor to participate in today’s hearingwith such a distinguished group of witnesses and before an audiencethat includes some of the leading researchers and activists on thisissue.
The plight of America’s homeless is truly heartbreaking and hasonly become worse in recent years as a result of the nation’sfinancial crisis and the rise of home foreclosures and evictions.As someone who has been fortunate enough to have gainfulemployment, a roof over my head, and food on my table, I can onlyimagine the desolate lives of those who have lost their jobs or areunemployable, who live on the streets and seek shelter underbridges or in cardboard boxes, and whose next meal is whollydependent on the charity of strangers. This is all the more tragicwhen one recognizes that the ranks of the homeless are strewn withdesperate mothers and their children, people suffering from mentalillnesses and addictions, and military veterans who had put theirlives on the line for this nation. The happenstance that has leftmany people homeless underscores the proverb “there but for thegrace of God go I” — and the compassion and tireless efforts ofadvocates for the homeless, including those in this room, confirmthe essentially goodhearted nature of the American people.
Against this background, it is hard not to be flabbergasted andrepulsed by the crimes of violence committed against the homeless,as described in media accounts and the recent report by theNational Coalition for the Homeless (NCH).2 Peopledoused with gasoline and set ablaze, beaten with pipes and bats,and stabbed with knives and broken bottles — all exemplifying thecruelty that man can inflict upon his fellow man. The same can besaid of the brutal acts that propelled the federalization of otherso‐called “hate crimes?: the murders of Matthew Sheppard in Wyomingand James Byrd, Jr. in Texas, and the attack on the NationalHolocaust Museum in Washington, D.C. and killing of museum securityguard Stephen Johns.3
These events greatly disturbed conscientious citizens across thenation. No decent American could argue against the investigation,prosecution, conviction, and punishment of those who commit suchcrimes. Of course, that was never a question before this augustbody, nor was it a genuine issue of debate among scholars, policyanalysts, and the general public. Instead, the problems concernedthe alleged necessity, the potential consequences, and the ultimateconstitutionality of the Hate Crimes Prevention Act (HCPA). Onthese points, I believe the law’s opponents had, and still have,the better arguments.
The HCPA is not directly at issue today. Instead, the hearing ispremised on two identical bills, S. 1765 and H.R. 3419, which wouldamend a twenty‐year‐old statute to include “homeless status” as aprotected class for purposes of federal law enforcement’s trackingof hate crimes across the nation.4 As a general matter,I have no objections to these bills in and of themselves. In fact,I strongly encourage the gathering and dissemination of statisticaldata and other relevant information as a means to enlighten policyjudgments on criminal justice. If anything, the bills do not go farenough to ensure full and accurate information about the commissionof and response to crimes motivated by legislatively identifiedanimus or bias — a point that I will return to at the close of mytestimony.
Before then, however, I would like to discuss two issues: (1)the collection of hate crime statistics, including hate crimesagainst the homeless; and (2) the justification for federalizinghate crimes, including those against the homeless. The first issuegoes to the heart of the bills under consideration by federallawmakers and is a problem with hate crime statistics in general.The second issue, though not directly before Congress, looms overthis entire hearing.
1. THE HATE CRIME STATISTICS ACT AND CRIMES AGAINST THEHOMELESS
Enacted in 1990, the Hate Crime Statistics Act directs the U.S.Attorney General to acquire data “about crimes that manifestevidence of prejudice based on race, religion, sexual orientation,or ethnicity.” It also requires that the Attorney General“establish guidelines for the collection of such data including thenecessary evidence and criteria that must be present for a findingof manifest prejudice and procedures for carrying out the purposes“of the law.5 The Attorney General subsequently delegatedthese responsibilities to the Director of the F.B.I., who thentasked the Uniform Crime Reporting (UCR) Program with the duty ofestablishing the necessary guidelines and procedures for collectinghate crime data.
The UCR guidelines describe a hate crime as a “criminal offensecommitted against a person or property which is motivated, in wholeor in part, by the offender’s bias.“6 In turn, bias isdefined as a “preformed negative opinion or attitude toward a groupof persons based on their race, religion, disability, sexualorientation, or ethnicity/national origin.” The guidelines thenprovide a series of criteria that might support a finding of bias.Some of the listed items seem commonsensical, like the presence ofbias‐related markings at the scene of the crime (e.g., a swastikapainted on the door of a synagogue). Others are less obvious ormight raise serious legal questions if used at trial, such aswhether a “substantial portion of the community where the crimeoccurred perceived that the incident was motivated bybias.“7 It is hard to imagine the evidentiary basis (letalone constitutional argument) for admitting testimony or documentsabout popular sentiment in order to prove that a crime has beencommitted.
The guidelines also provide vignettes intended to demonstratethe appropriate classification of hate crimes. One example involveda white male attacking a Japanese‐American male, who sufferedsevere lacerations and a broken arm:
The incident took place in a parking lot next to a bar.Investigation revealed that the offender and victim had previouslyexchanged racial insults in the bar, the offender havinginitiated
the exchange by calling the victim by a well‐known andrecognized epithet used against the Japanese and complaining thatthe Japanese were taking away jobs from Americans. AnAnti‐Asian/Pacific Islander [hate crime] would be reported based onthe difference in race of the victim and offender, the exchange ofracial insults, and the absence of other reasons for theattack.8
This vignette raises several constitutional issues if itinvolved an actual hate crime prosecution — whether the white maleis being punished on account of his speech or thoughts, forinstance, and whether the race‐based elements of the prosecutionviolate equal protection. It also raises questions of policy andpractice: Does the existence of a hate crime depend on who made thefirst racial insult or whose slur was more notorious” Might ithinge on who won the fight?
But consistent with the congressional mandate, the UCRguidelines make clear that their purpose is for data collectiononly. “Hate crimes are not separate, distinct crimes, but rathertraditional offenses motivated by the offender’s bias.“9Moreover, the guidelines acknowledge the inherent difficulty indetermining whether an offense should count as a hate crime:
Because motivation is subjective, it is difficult to know withcertainty whether a crime was the result of the offender’s bias.Therefore, before an incident can be reported as a hate crime,sufficient objective facts must be present to lead a reasonable andprudent person to conclude that the offender’s actions weremotivated, in whole or in part, by bias.10
The guidelines also offer a number of cautions — the need forcase‐by‐case assessment of the facts, the potential for misleadingor even feigned facts, the possibility of mistaken perceptions, andthe reality that subsequent findings may undercut an initialclassification.11 All told, the guidelines attempt toprovide some type of standards for data collection and a basis forsubsequent scrutiny of this information.
None of this necessarily guarantees accurate classification.Offenders have all sorts of motivations, conscious and unconscious,including cynical beliefs about those who are in some way differentfrom themselves. When hate crimes turn on one‐word slurs ornon‐verbal expressions, the classifier is placed in the position ofguesstimating the level of bias in the sometimes murky, oftenadrenalin‐filled circumstances of a criminal episode. Moreover, thestandard of proof vaguely resembles “probable cause” — the amountof evidence needed to conduct a search and seizure, forinstance12 — rather than the constitutionally mandatedstandard for conviction at trial. But again, this is of noconstitutional moment when the goal is to categorize data ratherthan condemn defendants. Moreover, the inherent limitations ofthese statistics are (or should be) understood and acknowledged bypolicymakers; and as long as errors in classification are random,the data provided under the Hate Crime Statistics Act might stillgive a reasonable overall picture with all caveats attached.
A far larger problem lies with the statistics provided byadvocacy groups, who use disparate or loose standards, or no realstandards at all, in the gathering and presentation of data.Policymakers often cite these statistics, and sometimes officialsact in reliance upon this information without meaningfulscrutiny.13 Among others, the U.S. Justice Department’sBureau of Justice Assistance has recognized the “widespreaddisparities between the hate crime data provided by public interestgroups,” calling upon government actors and private groups to worktogether on a “standard definition and reporting protocol for hatecrimes.“14 To my knowledge, no such accord has beenreached, and to be blunt, integrity and consistency in empiricalclaims have not been a strong suit for some advocates and scholars,who can claim that hate crimes are either an “epidemic” or “rare“depending on the demands of their audience.15
For instance, when federal statistics showed a decline in hatecrimes, some of the groups that had campaigned for the Hate CrimeStatistics Act suddenly denounced the federal data collectionscheme. Others resorted to anecdotalism or simply proclaimed thathate crimes were on the rise. As for the statistics that advocacygroups provide, some groups count all incidents as “hate crimes” ‑even if they do not amount to a criminal offense or only involvebias‐motivated comments, and regardless of the source ofinformation.16 Unfortunately, some of these problemsappear to exist in the NCH’s reports on hate crimes against thehomeless.17 Although its documents are well intentionedand laudable in many parts, the NCH repeatedly conflates twopotentially overlapping but importantly distinct concepts: crimesagainst the homeless and hate crimes against the homeless.
For instance, the NCH’s most recent report contains a table forthe years 1999 – 2009, listing in one column FBI Defined Hate CrimeHomicides and in the other column Fatal Attacks on HomelessIndividuals.18 According to the report, “The table showsthat over the past eleven years, there are more than double theamount of homeless hate crime deaths than there are for all
current protected people.“19 The table shows no suchthing, however, but instead compares homicides motivated by racialbias, religious bias, etc., versus fatal attacks on homelessindividuals, which may or may not have been motivated by homelessstatus and, in fact, may or may not have been homicides at all. TheNCH report includes the following accounts of what it apparentlybelieves to be homeless hate crime deaths:
The body of Ora James Light, a fifty‐one year‐old homeless man,was found under Interstate 4. Light’s abandoned body was found withmultiple stab wounds. An eighteen year‐old male, Tyler Sturdivant,originally denied any connection to Light but later admitted thathe killed Light in self‐defense.
Anthony Chatteron, forty, was killed by three men after a verbalargument. Chatteron believed that the men had stolen from him.Chatteron died at the scene after suffering from trauma to hisupper body. The men fled the scene and took off in a car with afemale driver. The police have not identified the suspects.
Allan McKibben was a homeless man in a wheelchair. He was founddead by a train station, without his prosthetic leg. His face hadbeen scratched and his tongue was severely bitten. Besides that,McKibben also had injuries to his collarbone and spine. Advocatesbelieve that the circumstances of McKibben’s death indicate foulplay; however, officials believe that some of his injuries may havebeen sustained before his death.
Seventeen year‐old Carlos Molina‐Alvarez is charged withfirst‐degree murder in the killing of a homeless man afterrepeatedly hitting him with a rock. The homeless man, KarlChilcoat, fifty‐two, suffered a crushed skull from the multipleblows from the heavy object. The attack seems to be unprovoked.Alvarez will stand trial as an adult.
Los Angeles police are investigating the suspicious death of ahomeless man who was found with burns marks on his upper body andface. Investigators are trying to determine whether the mansuffered the burns before or after his death. Locals say thehomeless man was a frequent resident of the area.
While sleeping in a tent, Edward Matthews, forty‐six, wasfatally shot in the head. It is thought that the perpetrator may bethe same individual who shot another homeless man, sixty, in themouth eight months earlier. Both attacks appeared unprovoked andoccurred in the early morning hours.20
These stories have two things in common: (1) they are extremelysad, and (2) they contain no facts indicating that the incidentswere motivated by bias against the homeless. In four of theincidents, no charges were filed, let alone suspects apprehended.The other two incidents had not resulted in convictions, andassuming the cases do go to trial, at least one is likely toinvolve a claim of self‐defense. To be clear, the authors of thereport may have additional information — maybe suspects have beenapprehended in all of the incidents, maybe the two chargeddefendants have been convicted, and maybe there is evidence thatwould lead a reasonable and prudent person to conclude that theactions were motivated, in whole or in part, by bias. But thisinformation is not contained in the report.
Moreover, many of the incidents listed in the report (bothlethal and non‐lethal) are loaded with speculation oracknowledgements that the facts and motives remain unclear:
- “The attack seemed unprovoked, according to police.”
- “The motive behind the attacks remains unknown, but policepresumed that the violence was directly related to the victims’homelessness.”
- “The attack seems to be unprovoked.”
- “There does not seem to be a clear purpose for the attacksbesides his housing status, as his possession were not taken.”
- “Police are continuing to investigate the motive behind [thevictim’s] stabbing spree. The only immediate connection between thevictims appears to be their homelessness.”
- “Both attacks appeared unprovoked and occurred in the earlymorning hours.”
- “Police say the young men intended to rob the homeless man whoseemed like an easy target.”
- “The motive remains vague, and the relation between the maleattackers and the homeless man is unknown. It is believed thatthere was a prejudice against the homeless man because of hissocial position.”
- “The motive and exact purpose of the beatings remainsunknown.”
- “The seemingly unprovoked attack on the homeless has peaked theattention of local law enforcement as this type of activity hasbeen on the rise.”
- “The precise motive behind the attack remains unclear yetpolice believe that the attack was unprovoked andpremeditated.”
- “A homeless couple was ambushed by an unknown aggressor behinda building downtownâ€¦ Officers are unsurewhether the couple was intoxicated or in shock, as they were bothincoherent upon arrival of the police. Investigators are unsure[of] the motivation behind the attack.“21
In one incident listed as a non‐lethal attack, the victimhimself said, “I don’t think this guy did this to me because I’mhomeless,“22 undermining the episode’s classification asa hate crime. Again, the authors of the report may have additionalinformation that goes beyond speculation and demonstrates that theincidents were not only crimes, but crimes motivated by biasagainst the homeless. But the report itself is short on suchinformation.
The NCH report might also lead the reader to wonder exactly whatbehaviors the authors believe to be criminal or should becriminalized. For instance, the report lists the following incidentunder the category of “non‐lethal beatings?:
Police are investigating a Craigslist.com ad posted inthe “Rants & Raves” section of the website. The authorthreatens to beat up homeless “punks” in San Luis Obispo. Policebelieve the poster to be male. According to his post, he plans todrive “all you out of my city” and threatened homeless residentswith a “rude awakening” when he and fifteen friends start to followhomeless people under bridges and into shelters. “We will bebeating you and making sure you know we won’t take it anymore,” thepost reads. It goes on to say, “I have nothing to lose, and onlythe peace and sanctity of my home town to gain.” Police aresearching the internet for the IP address of the computer in thehopes of locating whoever posted the comments. Even moredisturbing, the author writes, “This is no joke. This is an all outthreat and warning. You will be dealt with.” The post concludeswith, “Down with Prado. Down with the Shelter. Down with gutterpunks alike.” These are all references to homeless shelters in thearea. According to police, no acts of physical violence have beencarried out in connection with theposting.23
To be perfectly clear, I find this “ad” repugnant. The postingmight provide a reason for law enforcement to conduct a preliminaryinquiry, within constitutional boundaries, to ensure that theposter(s) does not engage in acts of violence. But what is equallyclear is that no “beating” has been committed and that anyprosecution based on the posting alone would violate theConstitution. The report also describes publications, visualdepictions, and video games that allegedly facilitate the socialstigmatization of the homeless. Although I have not seen thesematerials firsthand24 (and, quite frankly, I have nodesire to do so), the words and images detailed in the report arecertainly crude and callous. But based on the report’sdescriptions, I am reasonably confident that the First Amendmentprotects the materials.25 If the report is seeking toraise public awareness and, in particular, alert parents about theexistence of these materials, the goal is wholly unobjectionable.If instead the report is seeking to prompt government action — asis intimated by the inclusion of a citizen’s letter hoping that“the biggest nation in the world can succeed in getting thisatrocity banned“26 — then the objective iscensorship.
2. THE PROBLEMS OF FEDERALIZING HATECRIMES
In all honestly, it seems unlikely to me that advocates for thehomeless would ask lawmakers to ban speech that, althoughgrotesque, is protected by the Constitution. What I do believe isthat these well‐meaning advocates will eventually call uponCongress to add “homeless status” to the HCPA — and for all I know,the lobbying process may have already begun. The first panelist attoday’s hearing, Rep. Eddie Bernice Johnson, has stated herintention to introduce legislation that would extend hate crimesprotection to the homeless.27 Likewise, the NCH reportspecifically states its purpose to create “a commitment bylawmakers to combat the hate crimes and violent acts against peoplewho experience homelessness,” its disappointment that homelessstatus was not added to the HCPA, and its recommendation that the“U.S. Department of Justice should issue guidelines, for lawenforcement agencies on how to investigate and prosecutebias‐motivated crimes against people experiencinghomelessness.“28 If advocates and policymakers do notseek to add homelessness to the HCPA, they can disabuse me of mybelief during today’s hearing. If not, I think it is important toreiterate the problems of federalizing hate crimes, with referenceto the potential addition of homelessness as a protected class.
A preliminary question is whether the HCPA filled a genuineneed. For years now, some politicians, scholars, advocates, andjournalists have referred to hate crimes as an “epidemic” oraccepted this characterization, regardless of whether thestatistics have shown an increase or decrease in bias‐motivatedviolence.29 After 2001, the number of hate crimeincidents reported by the Federal Bureau of Investigation hasremained roughly the same — an average of 7,556 hate crimeincidents per year — despite an increase in the number of reportingagencies and, of course, a continually growing Americanpopulation.30 Although we may agree that the number ofhate crimes is too high (as compared to some baseline) and thatevery act of violence is disconcerting, the data do not show anepidemic, at least as the term is commonly understood (i.e., arapid increase in the incidence of something).
Nonetheless, this type of language was used to argue in favor ofthe HCPA, with, for instance, U.S. Attorney General Eric Holderdescribing “the scourge of the most heinous, bias‐motivatedviolence.“31 General Holder testified that “we have asignificant hate crime problem in the country,” that the federalgovernment “has a strong interest in protecting people from violentcrimes motivated by such bias and bigotry,” and that thelegislation was “vital,” “crucial,” and “necessary” to serve thatinterest.32 These claims are belied by the fact thatevery crime that might be prosecuted under the HCPA is already morethan well covered in state penal codes. There is no evidence thatstate and local law enforcement fail to prosecute vigorouslybias‐motivated crimes under traditional criminal statutes orpursuant to hate crime provisions that now exist in mostjurisdictions. Nor is there evidence that offenders who commitbias‐motivated crimes get off easy in state criminal justicesystems.
As was repeatedly noted during last year’s hearing, thoseresponsible for the murders of Matthew Sheppard and James Byrd, Jr.- the HCPA’s namesakes — were quickly apprehended and prosecuted bylocal law enforcement. These brutal killers were convicted andsentenced to death or life imprisonment. There is absolutelynothing that the HCPA could have added to these cases; indeed, hadthe murderers of James Byrd, Jr. been tried in federal court, theywould not have been eligible for capital punishment. Underquestioning, General Holder conceded that there was no trend ofunder‐enforcement or poor prosecution of hate crimes in the states.The best he could do was cite a handful of cases “where a state ora local jurisdiction has failed to act in a way that I think wewould all think that [a] locality should.“33
After the hearing, Senator Sessions looked into these cases andfound that each had been pursued by local enforcement.34Most of the cases resulted in convictions and imprisonment; thosethat did not were due to weaknesses in evidence not weak lawenforcement efforts. Moreover, Senators Coburn and Sessions askedGeneral Holder in writing how many hate crimes prosecutions he knewof that had gone unprosecuted in the state criminal justicesystems. The Justice Department responded that it could not providethe number of cases in which state or local jurisdictions hadfailed to prosecute hate crimes.35 So what has happenedsince the HCPA came into effect” This statute — intended to dealwith the “epidemic” of hate crimes and the “scourge” ofbias‐motivated violence, and described as “vital,” “crucial,” and“necessary” to serve the federal government’s “strong” interest inthis area36 — has generated a grand total of zerofederal prosecutions.
I have every reason to believe that adding “homeless status” tothe HCPA would have a similar underwhelming impact. This opinion isbased on, inter alia, the NCH report, which contains no indicationthat state and local law enforcement is failing to investigate andprosecute crimes of violence against the homeless. To the contrary,where there is evidence of a crime and known perpetrator(s),prosecutors appear to be charging defendants with homicide andassault and obtaining convictions and prison terms. By allaccounts, the primary obstacle to greater enforcement is thefailure of homeless victims to report crimes committed againstthem, a problem that has nothing to do with the absence of“homeless status” among the list of protected classes in theHCPA.
In addition to being superfluous, the HCPA — either in itscurrent form or with the addition of homeless status — presentssignificant policy and constitutional questions. Here, however, Iwill only briefly discuss a pair of issues, beginning with theprimary consequentialist argument for federalizing hate crimes.Some have claimed that the HCPA will “deter violent acts” and“protect our communities from violence based on bigotry andprejudice.“37 The very name of the law suggestsdeterrence: The Hate Crimes Prevention Act. This consequentialistclaim is hard to accept, given that the vast majority of crimes(and, to date, all hate crimes) are prosecuted in state criminaljustice systems. The murderers of James Byrd, Jr. and MatthewShepard committed their heinous crimes despite the existence ofstate homicide statutes that carried the ultimate sanction — thedeath penalty. It seems naÃ¯ve to think that theexistence of a federal hate crimes law would have prevented thesebrutal killings.
The typical offender characteristics and/or the circumstancesunder which hate crimes occur make it especially unlikely that thepossibility of federal prosecution will have any impact onbehavior. Deterrence requires that a potential offender not onlyknow of a criminal prohibition and attached punishment, but alsobelieve that the costs outweigh the benefits from violating the lawand then apply this understanding to his decision‐making at thetime of the crime. As noted in a Justice Department publication,however, the majority of offenders “merely are individuals whobelieve racial and ethnic stereotypes and act uponspur‐of‐the‐moment impulses,” with alcohol or drug use being afrequent factor.38 Needless to say, these are hardly thetype of well‐informed, rational actors that might be deterred by achange in the U.S. Code. In the case of violence against thehomeless, the vast majority of offenders were young males and, inparticular, teenage boys,39 who are less susceptible todeterrence due to cognitive deficiencies and limited capacity formoral judgment.40 As the Supreme Court noted a fewmonths ago, “Because juveniles’ lack of maturity and underdevelopedsense of responsibility … often result in impetuous andill‐considered actions and decisions, they are less likely to takea possible punishment into consideration when makingdecisions.“41
In fact, the HCPA might perpetuate rather than ameliorateinter‐group animosities. Some offenders are driven by ideologies ofracism, xenophobia, anti‐Semitism, and so on; and as a generalrule, they hate the federal government.42 By prosecutingthem under a federal law that singles out the precise groups theyhate, such offenders become martyrs for their cause in a proceedingthat they believe confirms their suspicions. And by making theirideologies the focal point of trial, a prosecutor may beencouraging rather than deterring like‐minded bigots.43In turn, the ordinary exercise of prosecutorial discretion ‑bringing charges in one case but not another — will lead to claimsof group‐based favoritism in hate crimes prosecutions, which hasalready occurred at the state level.44 This can onlystoke the flames of intergroup animosity rather than reducing thelikelihood of future bias‐motivated offenses.
Although the HCPA raises serious constitutional questions ‑including issues of free speech, due process, double jeopardy, andequal protection — I will focus here on concerns of federalism andthe purported authority of Congress to enact virtually anyprohibition it chooses, including bias‐motivated crimes. Groundedin the text and context of the U.S. Constitution,45federalism limits the powers of national government and preventsfederal interference with the core internal affairs of theindividual states.46 Among the areas that the Framerssought to reserve to the states was “the ordinary administration ofcriminal and civil justice.“47 The Constitutionmentioned only a handful of crimes in its text, all of which wereconsistent with the design and limits of federalism.48It was unthinkable to the Framers that the federal government wouldadopt a full‐scale penal code, let alone displace or substantiallyinterfere with the state criminal justice systems.49 AsChief Justice John Marshall opined, Congress “has no general rightto punish murder committed within any of the States,” and “it isclear that Congress cannot punish felonies generally.“50In more recent times, the Supreme Court has reiterated theselimitations on federal involvement in local criminal justicematters, given that the “[s]tates possess primary authority fordefining and enforcing the criminal law.“51Constitutional concerns are thus raised whenever Congress effects“a significant change in the sensitive relation between federal andstate criminal jurisdiction.“52
Unfortunately, Congress has assumed such power over criminalmatters, occasionally with a nod to an enumerated power, usuallythe regulation of interstate commerce.53 As a conceptualmatter, the HCPA can be viewed as an iteration of“overcriminalization.” This term refers to the constant expansionof criminal justice systems, through the creation of novel crimes,harsher punishments, broader culpability principles, and heightenedenforcement, often in the absence of moral or empiricaljustification and without regard for statutory redundancy orjurisdictional limitations.54 Although much of thisexpansion has occurred at the state level, the most virulent formof overcriminalization — and certainly the mostcriticized55 — has occurred in the federal system.Congress has slowly but surely obtained a general police power toenact virtually any offense, adopting repetitive and overlappingstatutes, criminalizing behavior that is already well‐covered bystate law,56 creating a vast web of regulatoryoffenses,57 and extending federal jurisdiction to allsorts of deception58 or wrongdoing59virtually anywhere in the world.60 At last count, therewere about 4,500 federal crimes on the books,61 with thelargest portion instituted over the past fourdecades.62
The scope of the HCPA is as breathtaking as any prior feat ofcongressional overcriminalization. Unlike civil rights statutes ‑which required either state action (e.g., abuses of force by localpolice) or the victim’s involvement in a federally protectedactivity (e.g., serving on a jury),63 and which wereenacted during periods when there was good reason to believe thatstate officials would neither enforce nor abide by the law — theHCPA federalizes private acts of violence perpetrated “because ofthe actual or perceived religion, national origin, gender, sexualorientation, gender identity, or disability of anyperson.“64 By the law’s terms, virtually every sexualassault could be a federal crime, for instance, given that suchcrimes are committed “because of” the victim’s gender and theassailant’s gender and gender preferences. Although many supportersdisavowed any such intention,65 apparently some JusticeDepartment officials refused to disclaim this remarkably broad buttextually straightforward construction of the law’scoverage.66 Under this interpretation, the addition ofhomeless status to the HCPA could federalize most acts of violencecommitted against the homeless. Not unlike the fact that burglarsvictimize “housed individuals” precisely because they have homes,the sad reality is that the homeless tend to be victimized becausethey do not have homes and must live on the streets.
Regardless of interpretation, however, the HCPA flouts theconstitutional precept that the federal government has limited,enumerated powers. To be permissible under the commerce clause, anon‐economic criminal statute must involve conduct thatsubstantially affects interstate commerce.67 This cannotbe “based solely on that conduct’s aggregate effect on interstatecommerce” through a “but‐for causal chain from the initialoccurrence of violent crime … to every attenuated effect uponinterstate commerce.“68 To hold otherwise would abolishthe very idea of federalism and obliterate any line betweennational and local power.69 Moreover, the enumeration ofcongressional powers in Article I, § 8 of the U.S.Constitution would be unnecessary if a nominal impact on interstatecommerce could trigger federal jurisdiction. In light of thehistorical background and accepted canons of interpretation, aconstruction of the commerce clause “that makes the rest of §8 superfluous simply cannot be correct.“70 As theSupreme Court concluded in United States v. Morrison,
The regulation and punishment of intrastate violencethat is not directed at the instrumentalities, channels, or goodsinvolved in interstate commerce has always been the province of theStates. Indeed, we can think of no better example of the policepower, which the Founders denied the National Government andreposed in the States, than the suppression of violent crime andvindication of its victims.71
This description applies squarely to the fundamentallynon‐economic, intrastate violence covered by the HCPA. The lawmerely asks that the offender, the victim, or the relevant actsomehow touch a channel, facility, or instrumentality of interstatecommerce — using a telephone or freeway might suffice, for instance‐ and it allows federal jurisdiction if the act simply “affects“commerce in some oblique way (i.e., no need for “substantialeffects”).72 The federalization of crimes of violenceagainst the homeless would be just as constitutionally troublesome.But as noted, there is no evidence that such crimes are goingunprosecuted in the states or that federal law enforcement has hadany impact on hate crimes in general.
This brings me back to the point raised at the beginning of mytestimony, namely, the bills at issue today do not go far enough toensure full and accurate information about the commission of andresponse to crimes motivated by legislatively identified animus orbias. I have no objection to homeless status being added to groupcharacteristics in the Hate Crime Statistics Act. Once again, I amin favor of collecting and disseminating empirical data as a meansto inform policy judgments on criminal justice. Given theaforementioned problems with the existing data on hate crimesagainst the homeless, the information gathered pursuant to theproposed bills could be enlightening. What is missing from ourcollective knowledge, however, is whether the HCPA is justified bythe failure of state and local officials to prosecute cases ofviolence that fall within the definition of a hate crime. Forinstance, Justice Department officials stated the following inresponse to separate queries by Senators Tom Coburn and JeffSessions:
The Department does not have access to precise statistics ofhate crimes that have gone unprosecuted at the State and locallevel, and we are unaware of any source for such comprehensiveinformation of unprosecuted offenses generally.73
The Department is unable to provide an exact number of cases inwhich State, local or tribal jurisdictions have failed to prosecutehate crimes because we are not aware of such compilation ofdata.74
As mentioned above, the best that the Justice Department hasbeen able to provide is a handful of cases that it believes wereunder‐prosecuted. To remedy this sort of information gap, SenatorOrrin Hatch has previously proposed a study to look into thequestion of state default.
Maybe this study would show a trend of under‐enforcement bystate and local prosecutors and insufficient punishment for crimesof violence, evincing a need for some type of action. Or maybe itwould affirmatively demonstrate that state and local officials areassiduously fulfilling their obligations, that bias‐motivatedoffenders are receiving just and effective punishment, and that theHCPA is entirely unnecessary. Either way, the American people andtheir elected representatives would be in a better position toevaluate this contentious area of criminal justice policy.
Again, thank you for the opportunity to speak today. I lookforward to answering any questions you may have.
1 All opinions expressed and any errorsherein are my own.
2 See NATIONAL COALITION FOR THE HOMELESS, HATE CRIMESAGAINST THE HOMELESS: AMERICA’S GROWING TIDE OF VIOLENCE (Aug.2010) [hereinafter “AMERICA’S GROWING TIDE”]; Eric Lichtblau,Killings of Homeless Rise to Highest Level in a Decade, N.Y. TIMES,Aug. 18, 2010.
3 See Matthew Shepard and James Byrd, Jr. Hate CrimesPrevention Act, Pub. L. No. 111 – 84, § § 4701 – 13, 123Stat. 2190, 2835 – 44 (2009).
4 Hate Crimes Against the Homeless Statistics Act, S.1765, 111th Cong. (2009); Hate Crimes Against the HomelessStatistics Act, H.R. 3419, 111th Cong. (2009).
5 Hate Crimes Statistics Act, Pub. L. No. 101 – 275, 104Stat. 140 (1990) (codified at 28 U.S.C. § 534 (2006)).
6 FEDERAL BUREAU OF INVESTIGATION, U.S. DEPARTMENT OFJUSTICE, HATE CRIME DATA COLLECTION GUIDELINES 2 (rev. ed.1999).
7 Id. at 5 – 6.
8 Id. at 7.
9 Id. at 1.
10 Id. at 4.
11 See id. at 6.
12 See U.S. CONST. amend. IV; Brinegar v. United States,338 U.S. 160, 175 – 76 (“Probable cause exists where =the facts andcircumstances within their [the officers’] knowledge and of whichthey had reasonably trustworthy information [are] sufficient inthemselves to warrant a man of reasonable caution in the beliefthat’ an offense has been or is being committed.”).
13 See, e.g., JAMES B. JACOBS & KIMBERLY POTTER,HATE CRIMES: CRIMINAL LAW & IDENTITY POLITICS 52 (1998). Infact, the call of today’s hearing was as follows:
Last month, the National Coalition for theHomeless released their annual report on hate crimes against thehomeless population … . The report shows that the killing ofhomeless people has risen to the highest level in a decade … .The goal of this hearing is to discuss the rising trend of violenceagainst this population and what response the federal governmentcan have to it. Specifically, we will talk about the importance ofcollecting accurate uniform data on this and how such data canprovide helpful and useful information to state and local lawenforcement, policy makers and NGO’s.
14 BUREAU OF JUSTICE ASSISTANCE, U.S.DEPARTMENT OF JUSTICE, A POLICYMAKER’S GUIDE TO HATE CRIMES xv(1997) [hereinafter “POLICYMAKER’S GUIDE”].
15 See, e.g., Christopher Chorba, The Danger ofFederalizing Hate Crimes: Congressional Misconceptions and theUnintended Consequences of the Hate Crimes Prevention Act, 87 VA.L. REV. 319, 332 – 34 (2001); JACOBS & POTTER, supra note 13, at46‐50, 53 – 55.
16 See, e.g., POLICYMAKER’S GUIDE, supra note 14, at8‐10; JACOBS & POTTER, supra note 13, at 46 – 50; see also infranote 30.
17 See AMERICA’S GROWING TIDE, supra note 2; NATIONALCOALITION FOR THE HOMELESS, HATE, VIOLENCE, AND DEATH ON MAINSTREET USA: A REPORT ON HATE CRIMES AND VIOLENCE AGAINST PEOPLEEXPERIENCING HOMELESSNESS 2008 (Aug. 2009) [hereinafter“HOMELESSNESS 2008”]; NATIONAL COALITION FOR THE HOMELESS, HATE,VIOLENCE, AND DEATH ON MAIN STREET USA: A REPORT ON HATE CRIMES ANDVIOLENCE AGAINST PEOPLE EXPERIENCING HOMELESSNESS 2007 (Apr.2008).
18 AMERICA’S GROWING TIDE, supra note 2, at 12; see alsoid. at 49 (“In 2009, the National Coalition for the Homelessreported that one hundred fifteen homeless people were victims ofhate crimes, forty‐three of which resulted in death.”). But see id.at 10 (acknowledging that “we could not always identify the motivefor each attack based on our sources”); HOMELESSNESS 2008, supra,at 13 (same).
19 Id. (emphasis added).
20 Id. at 20 — 26.
21 Id. at 20, 22 – 24, 26, 30, 32 – 33, 35, 39.
22 Id. at 31.
23 Id. at 31.
24 The only possible exception is the television showSouth Park, which I have watched on occasion.
25 See, e.g., United States v. Stevens, 130 S.Ct. 1577(2010); Brandenburg v. Ohio, 395 U.S. 44 (1969).
26 AMERICA’S GROWING TIDE, supra note 2, at 86.
27 “Congresswoman Eddie Bernice Johnson Votes to CloseGaps in Hate Crimes Law,” Apr. 29, 2009, available athttp://ebjohnson.house.gov/index.cfm?sectionid=21§iontree=18,21&ite… visited Sept. 29, 2010).
28 See AMERICA’S GROWING TIDE, supra note 2, at 10, 48,63.
29 See, e.g., JACOBS & POTTER, supra note 13, at45‐64; Chorba, supra note 15, at 332 — 33; Debbie Howlett, SomeFear Lack of Action Will Lead To Hateâ€œEpidemic,â€