Religious Crimes: Hearings on Property & Practices, Study Guides, Projects, Research of Religion

Download Religious Crimes: Hearings on Property & Practices and more Study Guides, Projects, Research Religion in PDF only on Docsity! CRIMES AGAINST RELIGIOUS PRACTICES AND PROPERTY HEARINGS BEFORE THE SUBCOMMITTEE ON CRIMINAL JUSTICE OF THE COMMITTEE ON THE JUDICIARY HOUSE OF REPRESENTATIVES NINETY-NINTH CONGRESS FIRST SESSION ON H.R. 665 CRIMES AGAINST RELIGIOUS PRACTICES AND PROPERTY MAY 16 AND JUNE 19, 1985 Serial No. 134 Legislative Office MAIN LIBRARY U.S. Dept. of Justice Printed for the use of the Committee on the Judiciary U.S. GOVERNMENT PRINTING OFFICE 65-883 O WASHINGTON : 1987 For sale by the Superintendent of Documents, Congressional Sales Office U.S. Government Printing Office, Washington, DC 20402 COMMITTEE ON THE JUDICIARY PETER W. RODINO, JR., New Jersey, Chairman JACK BROOKS, Texas ROBERT W. KASTENMEIER, Wisconsin DON EDWARDS, California JOHN CONYERS, JR., Michigan JOHN F. SEIBERLING, Ohio ROMANO L. MAZZOLI, Kentucky WILLIAM J. HUGHES, New Jersey MIKE SYNAR, Oklahoma PATRICIA SCHROEDER, Colorado DAN GLICKMAN, Kansas BARNEY FRANK, Massachusetts GEO. W. CROCKETT, JR., Michigan CHARLES E. SCHUMER, New York BRUCE A. MORRISON, Connecticut EDWARD F. FEIGHAN, Ohio LAWRENCE J. SMITH, Florida HOWARD L. BERMAN, California RICK BOUCHER, Virginia HARLEY O. STAGGERS, JR., West Virginia JOHN BRYANT, Texas HAMILTON FISH, JR., New York CARLOS J. MOORHEAD, California HENRY J. HYDE, Illinois THOMAS N. KINDNESS, Ohio HAROLD S. SAWYER, Michigan DAN LUNGREN, California F. JAMES SENSENBRENNER, JR., Wisconsin BILL McCOLLUM, Florida E. CLAY SHAW, JR., Florida GEORGE W. GEKAS, Pennsylvania MICHAEL DEWINE, Ohio WILLIAM E. DANNEMEYER, California HANK BROWN, Colorado PATRICK L. SWINDALL, Georgia HOWARD COBLE, North Carolina M. ELAINE MIELKE, General Counsel GARNER J. CLINE, Staff Director ALAN F. COFFEY, JR., Associate Counsel SUBCOMMITTEE ON CRIMINAL JUSTICE JOHN CONYERS, JR., Michigan, Chairman DON EDWARDS, California GEORGE W. GEKAS, Pennsylvania HOWARD L. BERMAN, California PATRICK L. SWINDALL, Georgia RICK BOUCHER, Virginia HOWARD COBLE, North Carolina JOHN BRYANT, Texas THOMAS W. HUTCHISON, Counsel MICHAEL E. WARD, Assistant Counsel GAIL E. BOWMAN, Assistant Counsel RONALD A. STROMAN, Assistant Counsel RAYMOND V. SMIETANKA, Associate Counsel BENNIE B. WILLIAMS, Clerk PEARL L. CHELLMAN, Clerk CHERYL REYNOLDS, Clerk (II) 2 Jewish synagogues seem to be a particular target for such vandal­ ism and destruction. It is with this awareness of the gravity of the situation, then, that we consider three pieces of proposed legislation before us. There are a number of questions about the legislation that must be answered. We need to determine the degree of the problem of inter­ ference with religious practices and the destruction of property. We need to decide whether Federal intervention is, in fact, the pre­ ferred means of dealing with the problem. Then we also need to determine what form the new law should take. The three bills before us take different approaches in some respects, and we are pleased to have our colleagues here to share their thoughts and knowledge and experience. [H.R. 665, H.R. 613, and H.R. 775 follow:] I 3 99TH CONGRESS 1ST SESSION H. R. 665 To establish criminal penalties for crimes against religious practices and property. IN THE HOUSE OF REPRESENTATIVES JANUARY 24, 1985 Mr. GLICKMAN (for himself, Mr. FRANK, Mr. SMITH of Florida, Mr. BERMAN, Mr. CONTE, Mr. WHEAT, Mr. LELAND, Mr. HAYES, Mr. GARCIA, Mr. MITCHELL, Mr. LUNDINE, Mr. MARKEY, Mr. WORTLEY, Mr. FRENZEL, Mr. LEHMAN of Florida, Mr. LEVIN of Michigan, Mr. BORSKI, Mr. ROE, and Mr. KOLBE) introduced the following bill; which was referred to the Committee on the Judiciary A BILL To establish criminal penalties for crimes against religious practices and property. 1 Be it enacted by the Senate and House of Representa­ 2 tives of the United States of America in Congress assembled, 3 That chapter 13 of title 18 of the United States Code is 4 amended by adding the following new section: 5 "§ 247. Destruction or theft of property used for religious 6 purposes 7 "Whoever willfully vandalizes or defaces, sets fire to, or 8 in any other way damages or destroys any cemetery, any 9 building or other real property used for religious purposes, or 4 2 1 any religious article contained therein or any religious article 2 contained in any cemetery or any building or other real prop­ 3 erty used for religious purposes, or attempts to do any of the 4 same, or whoever injures, or intimidates any person or any 5 class of persons in the free exercise of religious beliefs se­ 6 cured by the Constitution or laws of the United States, shall 7 be fined not more than $10,000, or imprisoned for not more 8 than five years, or both; and if bodily injury results shall be 9 fined not more than $15,000 or imprisoned not more than 10 fifteen years, or both, and if death results, shall be subject to 11 imprisonment for any term of years or for life.". 12 SEC. 2. The table of sections for chapter 13 of title 18 13 of the United States Code is amended by adding at the end 14 the following new item: "247. Destruction or theft of property used for religious purposes.". o I 7 99TH CONGRESS 1ST SESSION H. R. 775 To require the Attorney General to include in the uniform crime reports informa­ tion regarding the incidence of offenses involving racial, ethnic, or religious prejudice and to amend chapter 13 of title 18, United States Code, to prohibit damage to property used for religious purposes, and for other purposes. IN THE HOUSE OF REPRESENTATIVES JANUARY 30, 1985 Mr. BIAGGI introduced the following bill; which was referred to the Committee on the Judiciary A BILL To require the Attorney General to include in the uniform crime reports information regarding the incidence of offenses in­ volving racial, ethnic, or religious prejudice and to amend chapter 13 of title 18, United States Code, to prohibit damage to property used for religious purposes, and for other purposes. 1 Be it enacted by the Senate and House of Representa­ 2 tives of the United States of America in Congress assembled, 3 That under authority of section 534 of title 28, United States 4 Code, the Attorney General shall acquire, and shall include 5 in the uniform crime reports, information regarding the inci­ 6 dence of the following offenses: 8 2 1 (1) Robbery, burglary, theft, arson, vandalism, 2 and trespass involving property which symbolizes, or is 3 customarily used in, the performance of a religious ac­ 4 tivity or the achievement of a religious purpose. 5 (2) Homicide, assault, robbery, burglary, theft, 6 arson, vandalism, and trespass committed to manifestly 7 express racial, ethnic, or religious prejudice. 8 SEC. 2. (a) Chapter 13 of title 18, United States Code, 9 is amended by adding at the end the following new sections: 10 "§ 247. Damage to property used for religious purposes 11 "(a) Whoever willfully damages or destroys or attempts 12 to damage or destroy— 13 "(1) a cemetery; 14 "(2) a building or other real property used for re­ 15 ligious purposes; or 16 "(3) a religious article contained in a cemetery or 17 such building or real property; 18 shall be fined not more than $250,000 or imprisoned not 19 more than five years, or both; if bodily injury results, shall be 20 fined not more than $250,000 or imprisoned not more than 21 fifteen years, or both; and if death results, shall be fined not 22 more than $250,000 or imprisoned for any term of years or 23 for life, or both. •HR 775 IH 9 3 1 "§ 248. Injury to person exercising religious beliefs 2 "Whoever injures, intimidates, or interferes with any 3 person in the free exercise of that person's religious beliefs 4 secured by the Constitution or laws of the United States shall 5 be fined not more than $250,000 or imprisoned not more 6 than five years, or both; if bodily injury results, shall be fined 7 not more than $250,000 or imprisoned not more than fifteen 8 years, or both; and if death results, shall be fined not more 9 than $250,000 or imprisoned for any term of years or for life, 10 or both.". 11 (b) The table of sections for chapter 13 of title 18, 12 United States Code, is amended by adding at the end the 13 following new items: "247. Damage to property used for religious purposes. "248. Injury to person exercising religious beliefs.". o •HR 775 IH 12 tional right to warrant at least looking at a Federal legislative remedy to these problems. Thank you very much. [Mr. Glickman's prepared statement follows:] 13 STATEMENT BY REPRESENTATIVE DAN GLICKMAN (D-KS) BEFORE HOUSE JUDICIARY SUBCOMMITTEE ON CRIMINAL JUSTICE THURSDAY, MAY 16, 1985 All too often, we Americans take for granted the basic rights guaranteed by our Constitution. We rarely question the significance of those rights until they are infringed upon. When it comes to the freedom of religion, none of us would question that the right to practice our own beliefs is basic to our nation's principles, but I fear we have overlooked a serious infraction of this fundamental right protected by our Bill of Rights which threatens to undermine that freedom. In spite of our nation's willingness to accept and embrace various religions and forms of worship, there remains a minority within our population who see fit to vandalize and destroy religious property and, in the process, to jeopardize the freedom of others to safely practice their religious beliefs. I introduced the legislation being discussed here today, H. R. 665, because I feel it is imperative that a strong signal be sent to those who have been moved for whatever reason to commit such acts of violence and destruction. My legislation would impose federal penalities for such crimes including fines up to $15,000 and prison sentences of up to life tenure in the most egregious cases. The bill was crafted to avoid any possibility that the penalties would inhibit law enforcement action necessary to protect the public 14 safety against practices which present a risk of public danger even if the activity is cloaked in the name of religion. The tough penalties reflect that this particular type of violence infringes upon a Constitutional right. While these acts are very serious in and of themselves, their infringement on a Constitutional right brings them to a higher plateau and certainly provides a nexus for federal action. Furthermore, the fact that many of the "hate groups" which appear to be behind these acts of violence have members from various states and the need for involvement of federal law enforcement officials to get to the root of these reprehensible acts reveal clear interstate implications. I would remind my colleagues that the Congress has seen fit in a number of instances over the last several years to impose similar penalties on individuals who violate the civil rights of others in areas ranging from housing to voting rights to access to public facilities and places of entertainment. Imposition of similar penalities in the name of protecting the freedom to practice religious beliefs without fear of harassment or violence is fully warranted. That is precisely what H.R. 665 would do. While I, of course, feel a particular sensitivity towards anti-Semitic acts, this problem is by no means limited to the Jewish faith. The entire range of faiths including Baptist, Catholic and Espiscopal have been the targets of such attacks. Last year, two predominantly black churches in rural South Carolina were destroyed by arson; had congregations been in those churches, the human tragedy would have been immense. The fear of such a tragedy cannot help but trouble even the most faithful about their physical safety in practicing their religion. At the Koyasan Buddhist Temple in 17 the value it places on the freedom of religious practices, basic tenets that our society has followed since its formation. America is home to people of every possible religion, race, and creed. We share in each other's culture and heritage. It is these di­ vergent backgrounds and attitudes that have provided a stable en­ vironment for our children. Hate based upon one's race, creed, color, or national origin have no place in America. This legislation before us today demonstrates our belief that a hate crime offends us in a manner that no simple act of burglary or harassment possi­ bly can. I am here today to add my voice to those who say the perpetra­ tors of hate crimes, vandalism, and harassment against religious property and practices should be singled out by the Federal Gov­ ernment for particular punishment. The commission of hate crimes is a crucial and a disturbing issue. The origins of the problem are neither simple nor the solutions quick and easy, yet it is critical that we begin to address ourselves to the problem in the hopes of arresting its growth and offering long-term solutions. These hearings will not end the problem, but what we can do is call attention to the problem and make it known that we find these types of crimes abhorrent when they are committed against reli­ gious institutions that we all hold sacred. Again, I thank my colleagues for their strong efforts to heighten public awareness of this problem. We must continue to expose the incidents that are occurring so that the general public can under­ stand the seriousness of this situation. By combining a heightened public awareness and providing for distinct penalties, we can hope to arrest the rising tide of violence that threatens to drown the freedom of choosing one's religious ob­ servance. This Nation has developed its greatness by establishing a haven for freedom and diversity, forces that are stifled in so many other corners of the world. It is this dream which has nurtured those of us who have come from other countries if we intend to keep America free. Thank you, Mr. Chairman, and Mr. Gekas for this opportunity. [Mr. Matsui's prepared statement follows:] 18 TESTIMONY OF CONGRESSMAN ROBERT T. MATSUI HEARINGS BEFORE THE CRIMINAL JUSTICE SUBCOMMITTEE OF THE JUDICIARY COMMITTEE REGARDING HATES CRIMES THURSDAY, MAY 16, 1985 19 Thank you Mr. Chairman for the opportunity to come before your committee this morning. I am extremely pleased that my colleagues, Congressmen Glickman, Solarz and Biaggi have inititated legislation which calls attention to and addresses the problem of "hate crimes." Violence and harassment against religious institutions is not a new phenomenon. It is a recurring problem that is exacerbated by fluctuations in the economy and changes in the degree of public awareness. According to the 1983 Anti- Defamation League Audit of Anti-Semitic Incidents there were 670 vandalism incidents reported that year. That compared to 829 incidents reported in 1982 and 974 incidents reported in 1981. Just last summer, in my home state of California, anti-Semitic posters were pasted onto the walls of five synagogues. This event occurred on Tisha B'Av, a traditional day of mourning commemorating the tradgedies of the Jewish people throughout history. Jews are not the only victims of "hate crimes." There have also been numerous incidents of crimes against Christian institutions. In the mid-1970's a Baptist church in Austin, Texas was forced to hire a security service to cope with the large number of burglaries. Burglaries have also been reported by the Catholic parishes in East Los Angeles and Buddhist Temples in California. Recently churches used by various denominations were burned to the ground in South Carolina. Our religious institutions should not be forced to hire security guards to protect their property or worshipers. We 22 Mr. CONYERS. Thank you, Mr. Matsui. We appreciate your state­ ment and the concern that you have expressed. I would now like to recognize Raymond McGrath, our colleague from New York. Congressman McGrath has been concerned about community work and worked with the handicapped and elderly. He serves on the Committee on Ways and Means, and this is his first time appearing before our subcommittee. Welcome, sir. Your testimony will be incorporated into the record. TESTIMONY OF HON. RAYMOND J. McGRATH, A REPRESENTA­ TIVE IN CONGRESS FROM THE STATE OF NEW YORK Mr. MCGRATH. Thank you very much, Mr. Chairman and Mr. Gekas, and I appreciate the opportunity to testify before you this morning in support of H.R. 665. However, I wish my appearance before you was unnecessary. It is ironic and indeed tragic that just as we have observed the 40th anniversary of the end of World War II, and memorialized the mil­ lions of victims who perished in the Nazi attempt to exterminate the Jewish people, that there is a need for this bill. H.R. 665 proposes amending the Federal Criminal Code by estab­ lishing penalties for damaging, defacing, or destroying religious property. Sadly, there is a definite need to promulgate stricter laws to combat hate crimes, the largest number of which have been anti-Semitic. According to the Anti-Defamation League of B'nai B'rith, in 1984, there were over 715 incidents of anti-Semitic crime nation­ wide. This includes vandalism, bombings, arsons, and cemetery desecrations. Of the 715 reported cases, only 84 arrests were made. In my home district on Long Island in New York, there were 98 cases of anti-Semitic crime in 1984. Already in the first quarter of this year, there have been over 40 biased incidents reported in the same area. The need for legislative controls to curb this type of big­ oted degradation is obvious. Only 1½ weeks ago, Rabbi David Arzt, of the South Baldwin Jewish Center, awoke to find a fire in his synagogue. That May 5, 1985, incident was fueled by an arsonist who took all of the holy prayer books, prayer shawls, flags of Israel and the United States, stacked them on the altar and set them ablaze. We are left to wonder why. Who could possibly conceive of this sickening inci­ dent? Perhaps Rabbi Arzt best expressed the deep personal community and religious loss when he came upon the fire. He said, At the moment I discovered the prayer books, I knew that somebody, some sick, crazy, who knows what, had taken these prayer books. At that moment, I actually felt the room moan. It had been violated. It had been raped. It was lying there burn­ ing slowly, violated. I am not telling you this to shock you, but to give you an idea of the kinds of tragedies which take place across our country every day. Some will contest that anti-Semitic acts of violence are hard to differentiate from other crimes. I must disagree. Defacement of property such as painting swastikas, burning crosses, scrawling hateful graffiti, and desecrating cemeteries are clearly not signs of 23 individuals motivated by material gain; rather, they are signs of re­ ligiously motivated anti-Semitic offenses which should be brought under the Criminal Code. New York State has addressed this troubling phenomenon by en­ acting measures which criminalize biased vandalism and related activities. Legislation passed by New York State makes harassment of another person based on race, color, creed, or national origin a class A misdemeanor. Also, my State has a parental liability stat­ ute which holds parents responsible for up to $5,000 of damage re­ payment as a result of crimes against religious property perpetrat­ ed by their children between 11 and 18 years of age. Thefts of religious articles and property from religious buildings continue to increase. In an effort to further address the bias prob­ lem, a bill was introduced in the New York State Senate which will make it a class E felony to be convicted of possessing stolen reli­ gious articles with a value of $100 or more. Needless to say, I am pleased to represent 1 of 29 States which has taken these malicious crimes seriously enough to take substan­ tive legal action against sick people who are motivated by crimes of racial hatred. In a country founded on principles of religious free­ dom and one which prides itself on diversity, such crimes must not be the concern of only those affected. The passage of this legisla­ tion will send a clear message that the United States will not toler­ ate crimes of ethnically or religiously motivated hate. H.R. 665 imposes penalties of up to 15 years in prison and fines of up to $15,000 for persons convicted of hate crimes. Let us assure people of all religions the opportunity to freely exercise their rights without fear of violence. The time is long past due to exorcise from our midst those elements of evil and ignorance which seek to deter­ mine what groups may enjoy the freedoms guaranteed to all Amer­ icans. I want to thank the subcommittee for taking up this legislation, and I urge passage of this legislation. [Mr. McGrath's prepared statement follows:] 24 TESTIMONY OF CONGRESSMAN RAYMOND J. McGRATH BEFORE THE HOUSE JUDICIARY COMMITTEE SUBCOMMITTEE ON CRIMINAL JUSTICE MAY 16, 1985 Mr. Chairman, I am very pleased to have the opportunity to test ify th is morning in support of H.R. 665. However, I wish my appearance before you was unnecessary. I t is ironic and indeed t rag ic that just as we have observed the 40th anniversary of the end of WW II, and memorialized the mill ions of victims who perished in the Nazl attempted extermination of the Jewish people, that there is a need for th i s b i l l . H .R . 665 p roposes amending the Federa l Cr imina l Code by es tabl ishing penal t ies for damaging, defacing, or destroying religious property. Sadly, there is a definite need to promulgate stricter laws to combat "hate crimes", the la rges t number of which have been an t i - Semitic. According to the Anti-Defamation League of B'nai B'rith', in 1984 there were over 715 incidents of anti-Semitic crime nationwide. This includes vandalism, bombing, arsons and cemetery desecrat ions. Of the 715 reported cases, only 84 arrests were made. In my home d i s t r i c t on Long Island, New York, there were 98 cases of anti-Semitic crime in 1984. Already in the f i r s t quarter of th is year there have been over 40 bias incidents reported in the same area. The need for legislat ive controls to curb th i s type of bigoted degradation is obvious. Only one and one-half weeks ago Rabbi David Arzt of the South Baldwin Jewish Center, awoke to find a f i re in the Syngogue. That May 5, 1985, incident was fueled by an arsonist who took a l l of the holy prayer books and Bibles and stacked them upon the altar and podium---­ -then set them ablaze. We are le f t to wonder why. Who could possibly conceive of th i s sickening incident? Perhaps Rabbi Arzt best expressed the deep personal, community and rel igious loss when he came upon the fire. He said, "At the moment I discovered the prayer books, I knew that somebody----some s ick , crazy, who-knows-what-had taken these prayer books . . . . . . . . a t that moment, I actually fe l t the room moan. I t moaned. It had been v io la ted . It had been raped. It was lying there, burning slowly . . . v io la ted ." I am not t e l l i ng you this to shock you, but to give you an idea of the kinds of tragedies which take place across our country every day. Some will contest that anti-Semitic acts of violence are hard to d i f f e r en t i a t e from other crimes. I must disagree. Defacement of property such as painting swastikas, burning crosses, scrawling hateful graffiti, and desecrating cemeteries, are clearly not signs of individuals motivated by material gain. Rather, they are signs of re l ig iously motivated ant i-Semit ic offenses which should be brought under the criminal code. 27 cies may shift their attention away from the very cases of violence that we want them to give their utmost attention to. Let me explain. Traditionally, State and local law enforcement agencies have investigated and prosecuted crimes of vandalism, malicious destruction of property, and related criminal activity. The elements of those offenses are straightforward. It must be proven that the act was done, that the rock was thrown. To prove the reason why someone commits a crime is very diffi­ cult, not as a complex issue which we have in other kinds of crimes that we have asked for Federal jurisdiction over, but it is difficult to get that necessary evidence of why the person threw the rock. From a law enforcement perspective, State prosecutions of such matters would be much more certain and effective under local laws. Under the proposed legislation, the Government would have the burden of proving the religious character of the vandalized property and that the accused had the specific intent to interfere with the free exercise of religion by another person or group. As I said, under a State prosecution approach, the laws are spe­ cific to the violent act, and proof that the accused merely vandal­ ized the property or assaulted or threatened another would be suf­ ficient for conviction. In addition, a significant amount of the van­ dalism of religious buildings and cemeteries is committed by juve­ nile offenders. The Anti-Defamation League of B'nai B'rith indi­ cates that the overwhelming majority, more than 80 percent of those arrested for anti-Semitic vandalism in recent years, have been age 20 or younger, mostly teenagers and juveniles. Juvenile matters are rarely prosecuted in Federal court. When such proceedings are initiated federally, the Attorney General or his designee must certify that the State does not or will not assume jurisdiction or does not have adequate juvenile programs or serv­ ices, or that the offense charged is a violent felony or serious drug violation and that there is a substantial Federal interest in the case. I note also, Mr. Chairman, that the constitutional foundation for this legislation is open to question. It is not settled whether Con­ gress does have the power to prohibit criminal actions by a private person and not by the State. Mr. CONYERS. Would you repeat that, please. Ms. TOENSING. Certainly. It is still an open question, Mr. Chair­ man, whether Congress has the power to prohibit by criminal law actions that interfere with a constitutional right by a private person as opposed to the State. As I am sure the chairman is well aware, and you have had this discussion with many people over the course of the years about State action having to be involved in order for there to be a violation of the civil rights laws, in order to get Federal jurisdiction. It is still open to question, whether inter­ ference by a private person is really violative, whether there is the power there to prohibit interference by a private person. Mr. CONYERS. Would you apply that to the present subject? Ms. TOENSING. Yes. This is a prohibition on a private person interfering with a constitutional right. This is not a prohibition against the State doing it, which is what 241 and 242 do, but it is a prohibition on a private person throwing the rock, and we are talk­ 28 ing about Federal jurisdiction here, so the basis of the jurisdiction is open to question. We do not take a stand one way or the other on that, Mr. Chair­ man, but it is just not settled yet. Mr. CONYERS. I am going to help the Department begin to take a stand on it. I think you probably should take a stand on this, since it is in your jurisdiction and has been for 150 years. I certainly would not impose this on you this morning, on my birthday, but later on, I would like you to cite for me whatever case, authority, textbook, constitutional law, dictum in court cases, or any other source that would apply the unsettled constitutional question to this particular issue. Ms. TOENSING. Since it is your birthday, I have it available. Mr. CONYERS. YOU do have it? Ms. TOENSING. Yes. Mr. CONYERS. YOU were going to cite it anyway. Ms. TOENSING. Not orally, but it is in my testimony. It is United States v. Guest at 383 U.S. 745 (1966). Mr. CONYERS. What did that case do? Ms. TOENSING. It is unclear what it did or didn't do, but there was a great debate among the Justices at that time whether Con­ gress had the power to prohibit private interference with constitu­ tional rights. Mr. CONYERS. Since you have cited this case but say it is unclear, I think you ought to clear it up. Why are you citing it if it is un­ clear? Ms. TOENSING. I am pointing out to the chairman that the law is unclear in this area. I am stating a fact of a Supreme Court case and what it does or doesn't say, and what it does is leave this ques­ tion unanswered, Mr. Chairman. It will be for the Supreme Court to make that decision. Mr. CONYERS. Then, can you give me more detail on this case now or in the future? Ms. TOENSING. I would leave you a copy of the case. Mr. CONYERS. No. I don't want to have to read the case. I want to find out what it is you say the case stands for, other than the fact that it leaves the subject unclear. Ms. TOENSING. Well, in that area, that is what the case stands for; that the area is unclear. Mr. CONYERS. Could you elaborate on that? Ms. TOENSING. We have never had a majority of the Supreme Court say that Congress has the power to make a law that a pri­ vate person cannot interfere with a constitutional right. Congress has only passed laws where it has prohibited the State from inter­ fering with a constitutional right. I believe you and Drew Days had great discussions about this area. There are certain constitutional rights not explicit in the Consti­ tution. Mr. CONYERS. May I remind you that a citizen cannot lynch an­ other person, with or without State action, without violating a con­ stitutional right? I don't know how Guest could interfere with that. That is section 241 of title 18. 29 Ms. TOENSING. You would have to have some kind of State inter­ ference; in other words, that there was some kind of State action involved in that, Mr. Chairman. Mr. CONYERS. Does 241 require State action? Ms. TOENSING. Yes, it does. Mr. CONYERS. You say it does; my staff says it doesn't. Mr. HUTCHISON. It depends on the right involved. If the right is something protected only against State interference, then you have to have someone acting under color of law. Ms. TOENSING. Yes. There are some kinds of rights that the Su­ preme Court has recognized that are just so inherent in the organi­ zation of a government that they do not require State action, like the right to vote. The right to travel is perhaps one of them. Mr. CONYERS. That is what we said. First, you said that there was a requirement of State action. Now you recognize there are ex­ ceptions. Ms. TOENSING. There are certain kinds of rights that the court has recognized. They don't call them constitutional rights, although they are couched in those terms. They are so inherent in the orga­ nization of a government that that private interference is unac­ ceptable. Mr. CONYERS. Just a moment. In the Constitution or in section 241, they specifically name the Constitution. This isn't something that is not a constitutional right. You have looked at 241 recently? Ms. TOENSING. Yes. Mr. CONYERS. The word Constitution appears in section 241, so wouldn't we assume that these rights that are not under color of law are constitutional rights? Ms. TOENSING. But the first amendment, as my reading of the cases, has been one of those that has required State action. Your counsel may disagree, but the history of the first amendment has required State action. Mr. CONYERS. We will get back to that, but right now, doesn't 241 guarantee constitutional rights? Yes, no, or maybe? Ms. TOENSING. Let me explain. You had the same conversation with Drew Days about 5 years ago. Mr. CONYERS. I know. Ms. TOENSING. And it is frustrating for anyone who just looks at the statute—— Mr. CONYERS. We didn't have this conversation. We never dis­ cussed whether 241 was protecting a constitutional right. Ms. TOENSING. Whether State action was required, yes. Mr. CONYERS. The question is whether 241 protects a constitu­ tional right. Ms. TOENSING. Absolutely. Mr. CONYERS. All right. Now, that corrects your previous state­ ment and we can proceed. Ms. TOENSING. Well, if I said it does not, then I didn't hear the question. I thought you were asking whether it required State action on constitutional rights. Mr. CONYERS. Now we are coming to that point, now that we have agreed that this is a constitutional right, since I find the word Constitution in the section. 32 So I am asking you today if H.R. 665, as I introduced it, is uncon­ stitutional? Ms. TOENSING. I cannot answer that question. I can tell you at this time that it raises constitutional questions. Mr. GLICKMAN. Let me ask you this. If H.R. 665 were enacted, would the Department of Justice enforce it? Ms. TOENSING. I will not answer that now. That is not my posi­ tion, to answer that. Mr. CONYERS. Who makes those decisions? Ms. TOENSING. I believe that is made as we get more into the leg­ islation, but I don't know, Mr. Chairman, and I would hate to answer that for you now without knowing. I don't make that deci­ sion. I can tell you that. Mr. CONYERS. All right, I am assured of that, but we have to know. This is not a private corporation. What we need to know is who in this law firm over there does make the decision. Since you don't know now, when you find out, would you put it in the record? We could re-invite you to discuss this, and the constitutional ques­ tion, either way you choose. Ms. TOENSING. Certainly. Mr. CONYERS. Thank you. May I recognize my colleague? Mr. COBLE. Thank you, Mr. Chairman, and best wishes for a happy birthday as well. Mr. GLICKMAN. IS today your birthday? Thirty-nine? Forty? Mr. CONYERS. The question hasn't been put on the record. Mr. COBLE. I wanted to say, Mr. Chairman, I didn't ask that question. Thank you, Mr. Chairman. Congressman Glickman, Dan, and I were speaking about this on the way to vote earlier. Counsel as­ sures us that this matter before us could be enacted and would, in fact, be held constitutional, and I am not really all that concerned about that for the moment. I am concerned, Mr. Chairman, as to whether or not we might be premature today. We passed out of this subcommittee the Hate Crime Statistics Act recently, and I think that is coming before the full committee imminently. I am curious to know what developed from that. Statistics hopefully will be formulated and then the sta­ tistics will be back before us at some distant date, and not too dis­ tantly, I hope. What I am saying is, I want to be sure that in the wake of this act, that is, the Hate Crime Statistics Act, that we are not being premature here. I am not in favor of hate crimes going unan­ swered, but it is my belief, Mr. Chairman, that for the most part— and if I am incorrect about this I will happily turn a receptive ear to who can correct me—that redress and remedy is available at the State level for these crimes that we are discussing today, and that is what I want us to be aware of: that we don't just jump the traces and clutter. I guess what I am saying, Mr. Chairman, is that I am interested in getting the Federal Government out of the lives of my constitu­ ents whenever I can, and this might be an example where we may be adding laws and statutes and rules and regulations where ade­ quate remedy may well be available in each and every State. 33 That is my comment, Mr. Chairman, and thank you for permit­ ting me to speak. Mr. CONYERS. You are entirely welcome. Let me allow our representative from the Department of Justice to complete her statement. Ms. TOENSING. In the interest of time, Mr. Chairman, because I have the full statement on the record, let me just make one more point that is important to us. We do have this concern about local law enforcement taking over where they should be and where the crimes are more simply and better prosecuted because the elements are much easier to prove. But if you know of any area or any jurisdiction where they are not carrying through on these kinds of evil crimes, would you please let us know, because we will take a look at it to see if there is some Federal jurisdiction. As you know, in my statement I have outlined some other kinds of laws that could apply. We would like to see where there is a gap and if there is a need for Federal jurisdiction, but at this time we haven't receive that. If you do have information, please give it to us. Mr. CONYERS. You see, you have our roles confused. Your job is to provide us with the information. We pass the laws and you en­ force them. We don't find out the statistics to tell you that State X is doing a fine job and C through G are not so hot. That is your job. Ms. TOENSING. I think we all have an interest in effective law en­ forcement and I would assume if there is some reason, that the States weren't doing their job that had to be an element of this leg­ islation being proposed. Maybe it wasn't. Maybe there were other interests. But if that was one of the concerns, which it is many times when this kind of legislation is introduced, then we would like to know. We made phone calls and tried to find out if there were areas of complaint and we have asked around and we are not hearing about it. So if we are missing something, we are always open to getting information. Mr. CONYERS. That is why the FBI crime index was invented a number of decades ago, to keep track of crimes that the Federal Government thought were important enough to know whether they were increasing, diminishing, growing in number in certain areas or not in others, and whether they were being enforced at the State level, where they were duly enforceable. That is the responsibility of the Department of Justice, the FBI, and the crime statistics authorities which you employ and for which we allocate fairly decent sums of money every year. So, al­ though we appreciate your energy in calling around and looking through newspaper clippings to try to find out what the score is, we need a more organized way of tracking these matters. Although we read the newspapers and get news from our con­ stituents, this frequently isn't sufficient to give us a national pic­ ture. That is why the Hate Crime Statistics legislation, though not warmly received by the Department of Justice, is on track right now. That is why you have to quote ADL as a statistics source in­ stead of your own Department having the facts themselves. 34 You don't ask ADL how many Federal bank robberies occurred. You have that information. You can cite them specifically to the month and to the year and to the State. We are saying here, through these three pieces of legislation, that this particular sub­ ject matter is of serious enough moment for the lawmakers of America to decide that they should be specifically made duly pros­ ecutable. I hear you saying that, in our noble effort to do this, we might make the State less inclined to prosecute and that the crimes might be more difficult to prove. First of all, we have dual jurisdiction in civil rights laws. There has certainly been no effort so zealous on the part of the Federal Government to enforce these laws so as to cause some States not to prosecute them. As a matter of fact, our findings are that both the State and the Federal level could enforce civil rights laws a lot more effectively than they do. The second problem that I have with your argument is this ele­ ment of proof, of proving why somebody threw the stone, why somebody torched the synagogue. It is a fascinating question, but we in criminal justice aren't here to determine why. We leave that to the sociologists. Why somebody is a racist and why somebody lynched someone and why somebody burned or torched a syna­ gogue is a very interesting psychological question, but it is not a requirement for prosecution. Ms. TOENSING. Under this legislation it would be a requirement to prove the intent of the person. You have to prove that they in­ tended to do it because of interfering with a person's exercise of religion. That is the problem with the prosecution. Mr. CONYERS. We will now examine the three pieces of legisla­ tion. You might want to be aware of the fact that it has been sug­ gested that one of the problems with the legislation, and I don't know if it was meant to apply to all three pieces, is that we have to prove why the person committed the act, rather than what their intention was. I make a vast distinction between intent and why, unless you are using those terms synonymously. A specific intent requirement does not mean proving why. Ms. TOENSING. Yes. Mr. CONYERS. Oh, intent is why? Ms. TOENSING. AS the prosecutor, if you are going to show that the person had the intent to interfere with someone's religious rights, you have to show on the stand that the person had certain feelings that made them have that intent. Mr. CONYERS. Intent, yes, but we can prove or not prove intent. It can be inferred or presumed. But that is a lot different from having to prove why someone did it. Ms. TOENSING. That is how you show intent, if I throw a rock through a church window with any person or class of persons in the free exercise. You are talking about H.R. 665. Mr. CONYERS. YOU are saying that why is a part of the proof in court for the U.S. attorney. Ms. TOENSING. It becomes that in practice, yes. If I throw a rock through a church window, you are going to have to show that I did it to interfere or because of the religous factor of that institution, 37 stores or whatever, but properties that are actually identified as churches or synagogues. Ms. TOENSING. Well, in determining statistics, but if someone walks in and says, "I want you to prosecute this case because al­ though it was a storefront, it is my church," then we have the problem, you see. You are talking about that in the context of sta­ tistics. But I know it when someone wants me to prosecute it. Ms. BOWMAN. So what we are talking about then is a set of in­ stances most of which would be clear, some of which would present problems. Ms. TOENSING. I don't know. I don't know the statistics on one side or the other. Mr. GLICKMAN. Could I just ask a couple of questions? Would you acknowledge that the Federal Government has passed laws, and this administration has encouraged the passing of Feder­ al laws in which there are State remedies to deal with it? For ex­ ample, this administration, I think, is encouraging Federal legisla­ tion on labor violence under the Hobbs Act to give the Federal Government the authority to go in and enforce assaults. In the criminal code of last year, pharmacy robberies, livestock fraud, these are all issues that are dealt with under State law, but Uncle Sam has come in for whatever reason and said we need to deal with these on a Federal level. You acknowledge that if the Federal Government decides an issue is of great Federal concern, there is nothing wrong with the Federal Government coming in and offering legislation, even if the States have concurrent jurisdiction. Ms. TOENSING. Usually when we want to come in is when we feel we have evidence that the State is not adequately doing its job and that we can do the job better because of certain things, either the interstate nature, crossing State lines, so the police within one State can't follow them to the next, or when there is a complexity such as these large white-collar crime cases. Mr. GLICKMAN. OK, but that argument was used in the 1940's and 1950's to prevent the passing of civil rights laws, saying the States can take care of this and we decided, and there was a lot of resistance in this country, that the States couldn't take care of the problem. You, yourself, state that some of these problems can be dealt with with Federal civil rights laws; right? Ms. TOENSING. Yes; they are on the books for that. Mr. GLICKMAN. They are on the books. Ms. TOENSING. Yes. Mr. GLICKMAN. But at the same time, I want to make it clear that you are not retreating and going to withdraw all of your ef­ forts for us to pass any Federal legislation on criminal laws that the States has similar laws on. Ms. TOENSING. That was never the issue here. That is why I was asking if you knew of some problem that is not being prosecuted on the State or local level, because that would be one of the reasons that we would have concern. Mr. GLICKMAN. The question is often difficulty of proof. For ex­ ample, when we prosecuted civil rights cases, often Federal pros­ 38 ecutors had to be very, very innovative in order to get those cases prosecuted. Are you aware today of the rapidly growing nature of what I call Aryan people's movements occurring in the South and the far West, where there seems to be a hotbed of racial and religious big­ otry involved in them? Ms. TOENSING. I was scheduled to do Allan Berg's radio show on the day he was shot. Yes, I am very aware. Mr. GLICKMAN. OK, so you are aware that some of these have interstate implications, I assume, just from reading the newspaper. Ms. TOENSING. Yes. Mr. GLICKMAN. What I am trying to say here is, you are not saying the problem of racial and religious vandalism and violence does not have a Federal connection, are you? Ms. TOENSING. No; there are already laws on the books that have addressed that. Mr. GLICKMAN. OK, so your argument is that we need not add another Federal statute. We already have Federal statutes on the books to deal with that, Federal and State statutes. Ms. TOENSING. Yes. Mr. GLICKMAN. Have you talked to law enforcement people and the FBI to find out whether the civil rights laws or conspiracy stat­ utes, whatever is on the Federal books, are adequate to deal with this problem? Have you talked with FBI people to find out whether they think that these additional laws might be necessary as helpful tools in prosecution? Ms. TOENSING. You mean your specific legislation here? Mr. GLICKMAN. Like the legislation we are talking about now. Ms. TOENSING. I have not personally talked to someone with the FBI with that question in mind. I have talked to career prosecutors around the Department of Justice. Mr. GLICKMAN. And what do they tell you? Ms. TOENSING. That these laws, these proposals, cover areas that are uniquely better prosecuted by the States. Mr. GLICKMAN. What if there are interstate implications in them? Ms. TOENSING. We have 18 U.S.C. 1074 to cover that. Mr. GLICKMAN. Do you think that freedom of religion is a feder­ ally protected right? Ms. TOENSING. Yes. Mr. GLICKMAN. You do. Ms. TOENSING. Oh, yes; constitutionally protected. Mr. GLICKMAN. A constitutionally protected right. Ms. TOENSING. Yes. Mr. GLICKMAN. It probably would be useful to talk with prosecu­ tors and FBI people to deal with these issues. I guess my concern is that I see a growing problem out there of the development of hate groups involved in interstate activities, and I think that the civil rights statutes on the books are not sufficiently clear to deal with the problems, both the physical injury to persons as well as build­ ings, but you say they are. But at least we have on the record that you are not necessarily opposed to Federal legislation. You just think the existing Federal laws are adequate. 39 Ms. TOENSING. And the State laws cover that area, yes. Mr. GLICKMAN. OK, but philosophically you do not think that this is an area that the Federal Government has no business being involved in at all, do you? Ms. TOENSING. No, I don't. Mr. CONYERS. Ms. Toensing, how do you know that the laws are adequate if we don't have any statistics? You came here asking us about it. Ms. TOENSING. You are going to get me into last week's hearing. Usually, Mr. Chairman, we certainly hear about it from many congressional inquiries when things are not being prosecuted ade­ quately. It is hard to prove a negative. We have no information telling us that this is an area that is not being prosecuted by the States. Mr. CONYERS. You don't have any records. That is why you don't have any way of knowing. There are a lot of things you don't know about, but this is one that we were suggesting you should know about. So if you are waiting for congressional complaints to arise to give you a clue, sometimes you will find out that way and some­ times you won't. Ms. TOENSING. I am not waiting for that, Mr. Chairman. What I am saying is, we have no information that the States are not doing their jobs. Just so we leave no stone unturned, I asked you if you had some, if we were missing this in some respect, if we were just not getting the correct information. I am not sitting waiting for you all to provide us our basis. Mr. CONYERS. Your response to Mr. Glickman was that there was no problem as far as you could tell, and the reason you can't tell is that you don't have any records. We don't have any records be­ cause it is not our job to keep records. What we are saying is that if there was some way to keep the records—this goes back to the bill we just passed out—at least we wouldn't come here asking each other, "What have you heard lately about these crimes? The State agencies that are charged with this responsibility say that these crimes are on the upswing, but we didn't talk to all 50 of them; we only talked to 3 or 4 of them. Ms. TOENSING. But our issue here today is not whether they are on the upswing or downswing, which is of great concern, but our issue today is whether the States are prosecuting them adequately. Mr. CONYERS. That goes along with whether they are on the up­ swing or the downswing. If they are on the upswing, but if we don't even know what the number of cases are, how could we know whether they are being prosecuted adequately or inadequately? Ms. TOENSING. There are many ways, if a jurisdiction is not pros­ ecuting something. If churches are being ignored when vandalism is being done to them, there are certainly protests about that. Cer­ tainly people are upset about that, and we have heard about gaps in areas in that manner. That is why I was asking. Mr. CONYERS. May I point out that if we don't have records, and you are depending on letters and phone calls and complaints, there is no way that we can measure these crimes. Also, there is no way that you could come here and argue that the States are handling the job when you admit you don't know whether these crimes are 42 Mr. HUTCHISON. So some of those rules have been changing to permit greater disclosure of information obtained by Federal agen­ cies. Ms. TOENSING. It is not the sharing of the information that is the problem; it is the acquiring of the information. Sometimes different rules apply. Sometimes it is different regarding the use of the poly­ graph, even in the investigation, not in court. Let me just put it this way: We know what the bottom line is. Sometimes you have problems. It doesn't cure your problems. It makes problems when one jurisdiction has investigated and the other jurisdiction is the prosecutor. For instance, in Michigan, Mr. Chairman, the State of Michigan cannot use wiretapping at all, even with consent of one person, so I would get all the Michigan cases, drug cases, in the Federal court. You just have different evi­ dence that is allowed. Mr. CONYERS. But you are missing the point. The point is that it would still help the prosecutorial thrust, no matter who gets the evidence and whether or not you could use all the evidence gath­ ered, federally or not. Ms. TOENSING. But the point started from, doesn't this limit our involvement, and I am saying, no, it doesn't. Whether that is good or bad, I don't know, but it does not limit our involvement, and that is the question I first answered. No; we would be in there anyway because we wouldn't know who had perpetrated the crime. If we found out it was a juvenile and we couldn't go, that wouldn't just be a simple handing over. It still has its problems. Mr. HUTCHISON. The problem you have described is inherent for any offense for which there is concurrent jurisdiction; is that not true? Ms. TOENSING. Yes. Mr. HUTCHISON. A bank robbery, for example, is a concurrent crime. The States can prosecute as well as the Federal Govern­ ment, and the U.S. attorneys and the local prosecutors have to work out some sort of accommodation as to how to proceed. Ms. TOENSING. And they usually do that through the LECC now. Mr. HUTCHISON. The Law Enforcement Coordinating Committees. Ms. TOENSING. Yes. Mr. HUTCHISON. Why would their Law Enforcement Coordinating Committees be unable to work out such an accommodation in this area? Ms. TOENSING. They could. So our presumption with the LECC's as with bank robberies is to have the locals do more and more of what are their local crimes, and that is how we have carried it out. That has been our philosophy in the LECC's. Mr. CONYERS. But only on that. On some it is the presumption that the Feds will get it. It depends on what the subject matter is as to who is going to get it. His point is that it still makes it easier to prosecute whether there is an investigation going on at the Fed­ eral or the State level, and there is cooperation anyway. Mr. HUTCHISON. To the extent, then, that there are law enforce­ ment coordinating committees available to iron out difficulties be­ tween local and Federal prosecutors, your objection to this legisla­ 43 tion would be the same as your objection to any concurrent crime legislation. Is that what you are saying? Ms. TOENSING. No, because we look at them differently. Are these the kinds of laws that are better prosecuted by the State or better prosecuted by the Federal Government? Mr. HUTCHISON. But to the extent that you have a mechanism for resolving overlapping jurisdiction in the Law Enforcement Co­ ordinating Committees, you have a mechanism for resolving that sort of problem. Ms. TOENSING. There is a mechanism, but we go in with a philos­ ophy that what the locals want is jurisdiction over the things that are their laws, and that is why we have tried to get this coordina­ tion council initiated and working. It has been on that kind of phi­ losophy. If we went in and said, "Well, we, the Feds, are going to choose which ones we want and we will just take them and you get the rest," there wouldn't be much harmony. Mr. HUTCHISON. IS that the way the Law Enforcement Coordinat­ ing Committees work? Ms. TOENSING. No, I said there wouldn't be much harmony. Mr. HUTCHISON. So, to the extent they don't work that way for other offenses, they aren't going to work that way for these of­ fenses. Ms. TOENSING. The point I am trying to make is that this kind of offense, then, if you sat at a Law Enforcement Coordinating Com­ mittee, would be decided that the locals should be the better people and the people to be in charge of the vandalism kinds of State laws. Mr. HUTCHISON. Suppose the Federal penalties were greater than the penalties available under local law. Might that not be a reason for the Law Enforcement Coordinating Committee in a jurisdiction to decide that the Federal Government should take the lead in ag­ gravated cases, or indeed in all cases, and that the States and local prosecutors would withhold until after the Federal Government had prosecuted? Ms. TOENSING. It could or could not be. It would be a factor you would balance off. You could have a very high penalty, but the case is still the case, and you are not going to be assured that the judge is going to sentence by the maximum, I can tell you. You would have to balance that over a harder case to prove and you would just sit there and look at your facts and see what was a better situ­ ation. Mr. COBLE. Mr. Chairman. Mr. CONYERS. Mr. Coble. Mr. COBLE. Mr. Chairman, I have to meet a constituent. May I make one statement before I leave? Mr. CONYERS. You certainly may. Mr. COBLE. I thank you for yielding, sir. Mr. Chairman, I just want to say this goes back to what I said earlier, in that we may be premature in that the Hate Crime Sta­ tistics Act may be on line and statistics are going to be formulated hopefully over across the street. But last week we voted to hold the line on the U.S. attorneys line item, and I voted in favor of that. 44 There are too many lawyers in this town now on the Government payroll. So I am in favor of holding that line, but yet on the other side of the coin we may, Mr. Chairman, be creating additional duties where we are going to have to go back and kick that up one more time. I guess what I am saying, Mr. Chairman, I want to use this sharp pencil to save a whole lot of money, particularly where there are areas of redress available now. That is just what I wanted to say, Mr. Chairman, and I thank you for letting me speak. Mr. CONYERS. You are more than welcome. Mr. COBLE. And pardon me for having to leave, Mr. Chairman. Mr. CONYERS. That is quite all right. Did you want to make additional comments? Ms. TOENSING. As one lawyer on the payroll, I don't think I better say anything else. Mr. CONYERS. But that is what you were sent here for, and we are delighted to hear your comments. You will make us review the Screws case, the Guest case, my discussion with Drew Days, and most particularly, our discussion here today. Mr. GLICKMAN. Mr. Chairman, I would just say one quick thing. I wanted to let the Department know that the legislation, par­ ticularly H.R. 665, has strong bipartisan support, and among the Republican cosponsors are Mr. Fish, Mr. Conte, Mr. Frenzel, Mr. Lagomarsino, Mrs. Martin, Mr. Green, Mr. Edwards of Oklahoma, Mr. Young of Florida, Mr. Wortley of New York, Mr. Whittaker, and Mr. Ritter. So this is not something that doesn't have genuine support in the House, and I would think that our President, given his background and his interest in human rights, would be very interested in this concept, in seeing that there be some sort of legislative solution. I just thought that needed to be on the record. Mr. CONYERS. A very good point. Ms. Toensing, we have a requirement that testimony comes up 48 hours in advance. Could you assure us that that rule will be ad­ hered to whenever possible? Ms. TOENSING. It was my understanding that there was a draft copy brought up here 48 hours in advance. Mr. CONYERS. The draft came in at noon yesterday. Ms. TOENSING. I certainly will. I was told that a timely draft came in 48 hours in advance. Mr. CONYERS. A good point. Mr. Hutchison points out that it is the final statement that we want 48 hours in advance. There is an agreement that the drafts will not be circulated to the members, so although that is a step in the right direction, we need the whole works. Ms. TOENSING. Certainly. Mr. CONYERS. Thank you very much. Thank you for your time. [Ms. Toensing's prepared statement follows:] 47 - 2 ­ destroy any cemetery, any building or other real property used for religious purposes, or any religious articles contained in any cemetery, building, or real property used for religious purposes. In addition, the bill would make it a federal felony to injure or intimidate any person or class of persons in the free exercise of religious beliefs. Attempts would be covered and enhanced penalties would be provided for if injury or death results. H.R. 775 would add a new 18 U.S.C. 247 which would make it a federal felony to willfully damage or destroy (1) a cemetery; (2) a building or other real property used for religious purposes; or (3) a religious article contained in a cemetery or such building or real property. The proposed new section 247 covers attempts and provides for enhanced punishment if injury or death results. H.R. 775 also would add a new 18 U.S.C. 248 which would make it a federal felony to injure, intimidate, or interfere with any person in the free exercise of religious beliefs. Enhanced penalties are provided if injury or death results. In addition, the bill would require the FBI to collect and include in its Uniform Crime Reports information relating to certain crimes motivated by racial, ethnic, or religious prejudice. In this regard, I understand that the Department furnished its views to the Subcommittee on similar legislation, H.R. 1171, the proposed "Hate Crimes Statistics Act." 48 - 3 ­ In our view, this legislation would be an ineffective law enforcement response to the problem of vandalism and other forms of violence directed at religious groups. Moreover, the legislation may suffer from constitutional infirmities and, in any event, will present difficult prosecutive problems. Traditionally, state and local law enforcement agencies have investigated and prosecuted crimes of vandalism, malicious destruction of property and related criminal activity. We are aware of no information indicating an unwillingness or inability on the part of local authorities to pursue such matters when they occur on property occupied by religious organizations. Moreover, creation of concurrent federal jurisdiction over offenses traditionally dealt with by the states often encourages state law enforcement agencies to shift their attention and resources away from the area of concern. From a law enforcement perspective, state prosecutions of such matters would be more certain and more effective. Under the proposed legislation, the Government would have the burden of proving the "religious" character of the vandalized property, and that the accused had the specific intent to interfere with the free exercise of religion by another person or group. In a state prosecution, however, proof that the accused merely vandalized property or assaulted or threatened another would be sufficient. In addition, a significant amount of the vandalism of religious buildings and cemeteries is committed by juvenile 49 - 4 ­ offenders. The Anti-Defamation League of B'nai B'rith indicates that the overwhelming majority - more than 85% ­ of those arrested for anti-Semitic vandalism in recent years "have been age 20 or younger, mostly teenagers and juveniles." (Testimony of Jerome H. Bakst, Director of Research and Evaluation, Anti-Defamation League of B'nai B'rith before The Subcommittee on Criminal Justice, House Judiciary Committee, March 21, 1985.) Juvenile matters, as you may be aware, are rarely prosecuted in federal court. When such proceedings are initiated federally the Attorney General or his designee must certify to the court that the state does not or will not assume jurisdiction, or does not have adequate juvenile programs or services, or that the offense charge is a violent felony or serious drug violation and that there is a substantial federal interest in the case, 18 U.S.C. 5032. The intent of this legislation is to protect the free exercise of religion by individuals and groups. The First Amendment's guarantee that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof," has been held applicable to the states through the Fourteenth Amendment. Section 5 of the Fourteenth Amendment gives Congress the "power to enforce, by appropriate legislation, the provisions of this article." 52 Mr. CONYERS. The subcommittee stands adjourned. [Whereupon, at 11:55 a.m. the subcommittee adjourned.] CRIMES AGAINST RELIGIOUS PRACTICES AND PROPERTY WEDNESDAY, JUNE 19, 1985 HOUSE OF REPRESENTATIVES, SUBCOMMITTEE ON CRIMINAL JUSTICE, COMMITTEE ON THE JUDICIARY, Washington, DC. The subcommittee met at 10:15 a.m., in room B-352, Rayburn House Office Building, Hon. John Conyers, Jr. (chairman of the subcommittee) presiding. Present: Representatives Conyers, Gekas, and Coble. Also present: Representative Glickman. Staff present: Thomas W. Hutchison, counsel; Gail E. Bowman, assistant counsel; Raymond V. Smietanka, associate counsel; and Cheryl Reynolds, clerk. Mr. CONYERS. Good morning. Today the Subcommittee on Criminal Justice will continue its hearing on H.R. 665, and related bills regarding "religious vio­ lence." This legislation would provide Federal penalties for interference with persons engaged in the free exercise of their religious beliefs, and for damage to, or destruction of, religious property. The sub­ committee has held earlier hearings and considered bills by Mr. Solarz, Mr. Glickman, and Mr. Biaggi. For this hearing, we are adding an additional bill, H.R. 2611, sponsored by the gentlewoman from California, Congresswoman Bobbi Fiedler. She is, unfortunately, unable to be here, but her statement will be put in the record. Crimes against religious property have a profound and far-reach­ ing impact. One need not worship in a synagogue or church which has been vandalized to be a victim. Religious hate crimes are costly to the entire society, both in terms of the chilling of religious freedom and the monetary ex­ pense of building replacement and repair. The four bills before us seek to reduce the occurrence of religious property destruction and deserve our careful attention. We will now proceed with our first witness, Deputy Assistant At­ torney General Victoria Toensing, Criminal Division, U.S. Depart­ ment of Justice, a frequent witness before the subcommittee. Welcome and good morning. (53) 54 TESTIMONY OF VICTORIA TOENSING, DEPUTY ASSISTANT AT­ TORNEY GENERAL, CRIMINAL DIVISION, U.S. DEPARTMENT OF JUSTICE, ACCOMPANIED BY CARY COPELAND, LEGISLATIVE AFFAIRS Ms. TOENSING. Good morning, Mr. Chairman. Mr. CONYERS. We will incorporate your prepared statement into the record, as we will with all of our witnesses, and you may pro­ ceed as you choose. Ms. TOENSING. Mr. Chairman, because your request for me to re­ appear here was in the form of three questions, we don't have a prepared statement for this second round. Let me just go through the questions, Mr. Chairman. The first one is: "Are the bills under consideration constitutional?" At the subcommittee's first hearing the Department's represent­ ative stated: "I cannot * * * tell you at this time that H.R. 665 raises consti­ tutional questions." I am sure that this mistake was inadvertent, Mr. Chairman, but I was absolutely misquoted. In fact, I said exactly the opposite. My testimony is as follows: "I cannot answer that question. I can tell you at this time that it raises constitutional questions." I would appreciate it if that could be corrected in a letter so that that mistake doesn't stand. Mr. CONYERS. We acknowledge that the transcript says what you have just stated. I will send you another letter correcting it or amending it. Ms. TOENSING. I thank you very much. Mr. CONYERS. You are more than welcome. Ms. TOENSING. I am not sure what the question is, though. That's my problem. Since that is not what I said, perhaps whoever com­ posed the letter would like to tell me what exactly they were asking and then I can answer that. Mr. GEKAS. I guess the chairman wants to know whether you feel that there are indeed constitutional questions. Mr. CONYERS. Do you want me to send another letter? Ms. TOENSING. Only because I just want that so that if we look at it—— Mr. CONYERS. Do you want me to send another letter? Ms. TOENSING. Yes, I would appreciate that, just so we don't have a mistake about that testimony. I have no problem answering a question; I am just trying to figure out what the question was, be­ cause my testimony is the same as it was the last time, which is that there are constitutional questions, Mr. Chairman. I feel that it is my job to point out to you what those questions are so that you can take them into consideration in considering the legislation. Mr. CONYERS. Do you have any additional preparation to make if I send you another letter and set up another hearing? Ms. TOENSING. That's not my point. Mr. CONYERS. Just answer the question. Ms. TOENSING. No. 57 and third questions are based on some of the statistics that ADL presented before this committee before, but when you analyze how these statistics are brought it really doesn't answer the question. It's not clear. Mr. GEKAS. I have no other questions at this time. Mr. CONYERS. Does the commerce clause operate to make H.R. 665 a perfectly constitutional legislative vehicle? Ms. TOENSING. It could. There, again, it is a very difficult consti­ tutional question that has not been clarified. You are probably aware of the arson statute, 18 U.S.C. 844(i), which is an arson stat­ ute where we get people who bomb or commit arson on buildings that affect interstate commerce. When Congress passed that they wanted to use the broadest part of the commerce clause so they could be as inclusive as possible. A recent Supreme Court case, the Russell 1 case that just came down a few weeks ago, is a situation where there was a landlord who had an apartment building, I believe in Chicago, and he hired somebody to set fire to it. The fire never got set. The guy sounded like he was incompetent. Nevertheless, the landlord was indicted and convicted of a violation of 18 U.S.C. 844(i), and his appellate defense was this wasn't interstate commerce; this wasn't com­ merce; an apartment building does not affect commerce. The court said, "Yes, it does; this is a commercial kind of build­ ing and it can affect commerce in very many ways." Whether they would also look at a church and say that that af­ fects commerce, I don't know. That is not clear. It hasn't been an­ swered. Mr. CONYERS. Until you get a Supreme Court case involving a church, you're not sure. Ms. TOENSING. That's right. Mr. CONYERS. What about a bowling alley? Do you need one on a bowling alley? We could stretch this out to the point of relative ab­ surdity. If you were a Supreme Court justice, would you have a problem if the legal precedents found a basis in the commerce clause that an apartment "affected commerce" and then you came across a case involving a church? What would make that a different fact sit­ uation? Ms. TOENSING. The courts have looked at the commerce clause as concerned with business, in more of a commercial situation. They are not putting it on a higher level than religion. It's different. They have really used the commerce clause as that kind of power to deal with that which affects trade; and that is what it was passed for. I would think a court might have some problems there, but I am not going to predict what the court will. I can only say this is an issue that has not been decided, and it is something you should consider. Mr. CONYERS. Since the Supreme Court isn't going anyplace and we aren't either, we will take that into consideration. Is there any further discussion about point 1? EDITOR'S NOTE.—RUSSELL v. UNITED STATES, 471 U.S. 858 (1985). 1 58 [No response.] Let's proceed to point two. Ms. TOENSING. The second question is: The Anti-Defamation League of B'nai B'rith reports that there were 715 incidents of anti-Semitic crime nationwide in 1984 for which there were only 84 arrests made. Given these statistics, do you believe that relying upon state enforcement alone is a sufficient response to this problem? Here again, these statistics don't answer the full question. They really don't show us what is going on. For instance, the 715 inci­ dents. I am not sure what an "incident" is. For instance, Repre­ sentative Fiedler's description of five posters being put up would not be something that we could prosecute because of the first amendment. So when you say "incidents" it becomes very difficult to know what is included in that. What we have in that audit is that there were more serious inci­ dents according to ADL. They pulled those figures out. Thirty-two of them were "more serious." Those were 9 arsons, 8 attempted arsons, 3 bombings, 1 attempted bombing, and 11 cemetery desecra­ tions. The bombings and arsons, of course, would be covered under State law, and they probably would be covered under Federal law, depending on the exact facts, that is, whether we have the inter­ state nexus. I am just going over the present laws that we have. Under 18 U.S.C. 1074, if the perpetrator traveled in interstate commerce to avoid being prosecuted for having committed this act, we would have Federal jurisdiction over that person. That is our present arson-desecration-of-church statute, and it has the commerce clause involved in it. Another problem is that the bills we have before us are designed to protect property dedicated to religious use and the persons en­ gaged in the act of worship. Again, the ADL figures aren't totally helpful because they aren't restricted along those lines. They are talking about "anti-Semitic incidents," and we know that those take a wider range and they don't necessarily occur against the church property; sometimes it can be a person's house, the yard, or something like that. So those figures don't totally help us. Mr. CONYERS. So what is the answer? We know that there is a wide range of more violent and less violent incidents. We have some kind of idea about the relativity of it all. Do you still think, given your further analysis, that State enforcement is a sufficient response? Ms. TOENSING. Again, we discussed this before, and I am not finding that it is not a sufficient response. I know a representative of the Jewish community is here to speak. Maybe he has some fur­ ther figures or some feeling from the community that certain States are not doing their job. Mr. CONYERS. But what do you feel? Ms. TOENSING. I don't have any information to tell me that the States are not doing their job. That would lead us to the third ques­ tion, Mr. Chairman. So why don't we proceed with that? Mr. CONYERS. Before you get to the third question, do you think that State enforcement at the present time is sufficient? 59 Ms. TOENSING. It would appear to be sufficient. It doesn't appear otherwise. Mr. CONYERS. No. 3. Ms. TOENSING. The third question, Mr. Chairman, is that only 29 States have taken substantive legal action against persons commit­ ting the serious crimes that I just spoke about, and "given the po­ tential interstate nature of these crimes, how would the Depart­ ment suggest the Federal Government urge the remaining 21 States to also take action?" First, I can't say that I agree with the statement "given the po­ tential interstate nature of these crimes." We are finding that many of them are committed by juveniles. I don't think they are traveling in interstate commerce to commit them. Again, we have a problem with the figures. We went through the list here. We have 33 jurisdictions where we have incidents report­ ed. We have 29 States having taken legal action; so four States have not taken action. For instance, Louisiana had one cemetery desecration, and then it had no cases and no indictments from that. So that would be one incident that a State did not take an action on. This occurred in 1984, according to the figures, and sometimes it takes a while to have an investigation and to indict. I didn't compile these figures, so I am not sure exactly what they are reflecting. But it is not entirely helpful to us. Rhode Island had one "ARS". I am not sure what that is. It's under a category of serious crime. It is probably an arson. The next one to it is probably an attempted arson. I assume "ARS" is an arson. Rhode Island had one arson which it did not address, and no cases or indictments. The next State is Connecticut, which had three cemetery dese­ crations and no indictments. Idaho had one bombing and no cases or indictments. So we had six incidents that ADL has presented. So really it is not 21 States that didn't take action; there are six incidents that have not been addressed. I would be glad to work with ADL and look into it to see why they weren't or what the problem is with those cases. I just do not have those cases available to see why no action was taken. Mr. CONYERS. How would the Department suggest the Federal Government urge the remaining States to take action? Ms. TOENSING. First you have to have the incidents to take action. If we don't have a situation where there is an incident—not all of the States have had incidents, but as I just said, those inci­ dents which I just named where there was an arson, there was a bombing, and the figures show there was no indictment, I would be glad to work with them if they give me those cases, and we will make calls and find out why they weren't brought, what happened to them. Mr. CONYERS. Any questions? [No response.] All right. I think we are going to be able to excuse you. Thank you for your testimony. 62 Third, enactment of such legislation will carry to offenders, to victims and to society at large an important message, that the Nation is committed to battling the violent manifestations of bigot­ ry and racism. Because this is our belief, we are here today to support the con­ cept of a Federal hate crime act; that is, legislation that would make Federal offenses of criminal acts directed at religious institu­ tions and of criminal acts directed at individuals or groups of indi­ viduals because of their particular religious faith, color, or ethnic affiliation. However, we urge that the enactment of such an act should in no way be considered in derogation of the jurisdiction, authority and duty of State officials to be the first and greatest bul­ wark against incidents of antireligious violence. We note that there are several bills pending which are intended to address some or all of the concerns we have raised. We are not here today to support one particular hate crime bill as against an­ other. However, we do wish to urge Congress to take into consider­ ation constitutional concerns which must be borne in mind. Thus it is the right of every person to be protected from fear, in­ timidation, harassment and physical harm which may be imposed upon them by reason of their religious faith, color or ethnic origin. However, legislation intended to protect individuals from such harms must be carefully drafted so as not to interfere with the ex­ ercise of rights protected by the Constitution of the United States. It is the constitutional right of every citizen to harbor and express beliefs of any nature and on any subject whatsoever and to associ­ ate with others who share similar beliefs. We urge that at least the legislative history, if not the final enactment itself, clearly reflect that any hate crime legislation is not intended to encroach upon such constitutional rights. Toward that end, the portion of the ultimate enactment which penalizes acts directed at individuals or groups because of their particular affiliations should clearly define the offense so as to en­ compass only acts which are, in any event, criminal under Federal or State laws and are clearly not protected under the first amend­ ment, such as trespass, assault and harassment. Legislation framed in this fashion would clearly carry out the intent of this legislature by further penalizing individuals who commit acts of violence or in­ timidation based on motives of hate without encroaching upon free­ doms of belief and expression. With these considerations in mind with respect to the constitu­ tional implications of the pending bills, we respectfully urge the Congress to enact an appropriate hate crimes act. Mr. CONYERS. Thank you, attorney Foltin. Could your legal department give us a memo on the constitution­ ality of 665? Mr. FOLTIN. We would be pleased to do that, Mr. Chairman.2 Mr. CONYERS. Also, I would like you to comment on the numbers of incidents that occur but are not prosecuted by the States, based on your statistics, or any statistics you can find. EDITOR'S NOTE: See p. 71 infra. 2 63 Mr. FOLTIN. Mr. Chairman, I do not have any statistics with me today. I think part of the problem, as was indicated in the earlier discussion, is that there has been some question about the extent to which existing figures have gathered sufficient information to make a judgment about the extent to which localities are not deal­ ing with the problem, and that is why we have endorsed the Hate Crime Statistics Act. I think part of the problem, though, and part of the reason we support the act is that there is a perception among some members of the Jewish community and of other communities that there is a problem that has to be dealt with nationwide and that the Federal Government should be part of the solution dealing with that prob­ lem. We think that this act should in no way be understood as obviat­ ing the responsibility and the duty of State and local government to be the primary defender of the rights of citizens against viola­ tions of their rights by violent acts and other crimes. However, the Federal Government does have a role to play in this, especially when first amendment rights of citizens are being violated, and that is why we think the act which would make this into a Federal crime should be supported. Mr. CONYERS. That is a very cogent observation. Mr. Gekas, do you have any closing comments? Mr. GEKAS. I noticed in the written statement that you say: Second, to the extent state and local jurisdictions have not moved effectively on this front, it is hoped that federal legislation will promote some movement in that direction. How can we fill a void unless we enact a statute that does it, period? That statement seems to mean that where we can find out statistically that the States have acted and do act on a certain genre of offenses that perhaps we should not get involved. I think that, of course, is also a valid view. Mr. FOLTIN. Congressman Gekas, what I would respond to that is that to the extent when incidents take place and States or local ju­ risdictions deal with those incidents, I think it is appropriate that they be the first ones to deal with those incidents, and if they are dealing with them appropriately, that the Federal Government not be involved. I would point to the civil rights laws which often are invoked with respect to acts that violate the civil rights of individuals only when the States or local authorities seem to have failed to act to protect the civil rights of individuals when they are victims of acts of violence. In those cases the Federal Government generally does not act if an appropriate prosecution is taking place by the State or local authorities. I think that kind of framework is an appropriate framework to which to look in considering this act as well. Mr. GEKAS. I have no further questions. Mr. CONYERS. Mr. Glickman. Mr. GLICKMAN. Let me go over some points, because I was not here earlier. One is that as a general proposition you support the legislation that we are talking about today. Mr. FOLTIN. AS a general proposition, we support the notion that the Federal Government should be involved in law enforcement 64 against the Federal hate crimes and that there should be appropri­ ate Federal legislation to deal with that problem. Mr. GLICKMAN. It appears to me that in the last few years we have seen a rise of groups like the Aryan nations and a variety of other neo-Nazi, populist type groups sometimes arising out of rural America. There has been some violent behavior associated with these groups, and they seem to have some national ties, national networks, national implications. One of the arguments that I have always made in connection with this bill is that in some cases the States are incapable of deal­ ing with the issues these bills address, even if they have the incli­ nation, because there are interstate implications, and from both a law enforcement as well as a penalization point of view there needs to be a Federal remedy in addition to just a State remedy. I wonder if you might comment on that. Mr. FOLTIN. Congressman Glickman, I think that is a very well put observation. Obviously, when groups such as you have referred to commit acts that are in any event violations of Federal law— there have been newspaper reports of incidents involving bank rob­ beries and arson and other such incidents. When such incidents do take place the Federal authorities do have the jurisdiction and en­ forcement capabilities to deal with those situations. However, such groups may be involved on a nationwide scale in other acts that do not fall under Federal legislation, and we think it would be appro­ priate enforcement against these kinds of groups and against their activities to provide a Federal basis that is directed toward crimes that otherwise might be State crimes but are motivated by these kinds of racial and religious hatred motivations. Mr. GLICKMAN. I recall that in organized crime one of the ways that the Federal Government has often been able to get at orga­ nized crime figures is through income tax laws or laws related to extortion or conspiracy, unrelated to crimes that would perhaps more classically be prosecuted under State law. The Federal Gov­ ernment has the opportunity of using its authority well beyond that. Let me ask this question. There seems to be some reticence—it's not formal—among some Jewish groups that perhaps we ought to leave well enough alone, that the States can handle this matter, why make it a big Federal issue, why play the issue out in the press more than it is. It is almost the old theory that if you talk about it too much it might encourage people to commit the acts more. I wonder if you might comment on that. Mr. FOLTIN. The AJC has always been opposed to the notion that you make a problem go away by ignoring it. I think the way to deal with these sorts of things is to deal with them forthrightly. I think that the way to deal with the problems is generally to deal with them forthrightly. It is also to make it clear that the Jewish community, as every other ethnic community in the United States, are here as citizens and not as guests and have the full rights and responsibilities and a right to expect government protection as every other group in the United States. I think that if legislation can help to more effectively deal with problems of anti-Semitism and racism and other antireligious ac­ 67 STATEMENT of RICHARD T. FOLTIN ASSOCIATE LEGAL DIRECTOR on behalf of THE AMERICAN JEWISH COMMITTEE on H.R. 613, H.R. 665, H.R. 775 and H.R. 2611: THE "HATE CRIME" BILLS to the SUBCOMMITTEE ON CRIMINAL JUSTICE HOUSE JUDICIARY COMMITTEE HOUSE OF REPRESENTATIVES June 19, 1985 American Jewish Committee 165 East 56th Street New York, New York 10022 68 The American Jewish Committee, a national organization of approximately 50,000 members founded in 1906, i s dedicated to the defense of the civil r ights and religious l iber t ies of al l Americans. We wish to take this opportunity to express our support for, and make some comments with respect to, the concept behind the various "Hate Crime" bills which are now pending in Congress. At the outset, I would like to take this opportunity to thank Chairman Conyers and the members of the subcommittee for their interest in helping to eradicate crimes of racial and religious hatred in this country and for providing a public forum for the discussion of these pressing issues. In addition, I would l ike to express the American Jewish Committee's gratitude to Chairman Conyers and to Representatives Biaggi, Fiedler, Glickman, Kennelly and Solarz for their sponsorship of proposed legislation addressing this nationwide problem. It has been estimated that there are hundreds of brutal acts each year directed against individuals and inst i tut ions based upon color, religious beliefs or ethnic a f f i l l i a t ion . These acts, which may include desecration of places of worship or cemeteries, arson or even murder, consti tute an ominous threat to the p lura l i s t ic and democratic values on which our country is bu i l t . It must be clear not only that these acts are condemned, but also that society will take effective steps toward their eradication. Some s ta tes and local communities have acted vigorously, both in enacting legislation directed specifically at so-called "hate crimes," and in enforcement of already existing laws against those who commit offenses directed at particular faith groups. We applaud these effor ts , and acknowledge the primary and essential role of local law enforcement agencies in dealing with such criminal ac t s . Other local communities, unfortunately, have not prosecuted these types of crimes with the same vigor. AJC believes that the federal Government has a role that it should play in dealing with "hate crimes," for several reasons. 1 69 First, because organized hate groups are national or regional in scope, the help of the Federal Government may be required, in certain instances, to effectively deal with this problem, regardless of the extent to which local law enforcement authorities have acted on these matters. Second, to the extent state and local jurisdictions have not moved effectively on this front, it is hoped that Federal legislation will promote some movement in that direction. Third, enactment of such legislation will carry to offenders, to victims and to society at large an important message — that the nation is committed to battling the violent manifestations of bigotry and racism. Because this is our belief, we are here today to support the concept of a Federal "Hate Crime" Act — that is, legislation that would make federal offenses of criminal acts directed at religious institutions and of criminal acts directed at individuals or groups of individuals because of their particular religious faith, color, or ethnic affiliation. However, we urge that the enactment of such an act should in no way be considered in derogation of the jurisdiction, authority and duty of state officials to be the first and greatest bulwark against incidents of anti-religious violence. We note that there are several bills pending which are intended to address some of all of the concerns we have raised. We are not here today to support one particular "hate crime" bill, as against another. However, we do wish to urge Congress to take into consideration constitutional concerns which must be borne in mind. It is the right of every person to be protected from fear, intimidation, harassment and physical harm which may be imposed upon them by reason of their religous faith, color or ethnic origin. However, legilation intended to protect individuals from such harms must be carefully drafted so as not to interfere with the exercise of rights protected by the Constitution of the United States. It is the constitutional right of every citizen to harbor and express beliefs of any nature and on any subject whatsoever, and to associate with others who share 2 72 -2­ 1. General Governmental Au tho r i t y t o Cr iminal ize Private Acts in Derogation of Right to Free Exercise of Rel ig ion. It is an axiom of constitutional interpretation that the First Amendment's protections of freedom of religion, freedom of speech and freedom of assembly, at l eas t so far as those protect ions are self- operative, extend only to government act ion. See, e . g . , United Brother­ hood of Carpenters and Jo iners v. S c o t t , 463 U.S. 825, 831 (1959) (hereaf ter " S c o t t " ) ("The First Amendment, which by v i r tue of the Due Process Clause of the Fourteenth Amendment now applies to state govern­ ments and their officials, prohibits either Congress or a State from making any 'law. . . abridging the freedom of speech, . . . or the right of the people peaceably to assemble. ' " ) I t i s s im i la r l y "'. . . a commonplace tha t rights under the Equal Protection Clause i tse l f arise only there has been involvement of the State or of one acting under the color of its authority.'" Id., citing United States v. Guest, 353 U.S. 745, 755 (1966). As to the author i ty of the government to enact leg is la t ion intended to protect these rights against private ac t ion , i t is best f i r s t to turn to cases dea l ing w i t h s ta te au thor i t y i n these matters. While the Federal Government has only those powers delegated to it by the Consti­ tution (U.S. Const., Amend. X), the states possess all the powers of sovereignty not exclusively delegated to the federal Government, not in conflict with legislation enacted by Congress and not prohibited to the states. Parker v. Brown, 317 U.S. 341, 359-60 (1943). Thus, absent some 73 -3­ overriding constitutional consideration, one would expect the states to be empowered to enact legislation of the type here proposed under their generally-recognized "police power" to further public health or safety. See Bibb v. Navajo Freight Lines, Inc. , 359 U.S. 520 (1959). Research has uncovered little authority regarding the proposition that the state governments may enact legislation which protects indivi­ duals in the exercise of their rights of free exercise by specially or more harshly penalizing criminal acts directed at individuals exercising those r i g h t s . However, the U.S. Supreme Court did let stand Riley v. District of Columbia, 283 A.2d 819 (D.C. 1971), cert. den., 405 U.S. 1066 (1972) , in which the D is t r ic t of Columbia Court of Appeals sus­ tained as constitutional a statute prohibiting disturbances of religious meetings. The D.C. appellate court characterized that statute as "a guarantee of the free exercise of religion to al l persons." Id. at 625. In so holding, the D.C. court upheld a lower court's rejection of the argument that the statute violated the Establishment Clause, finding that there is "a legitimate governmental interest in protecting freedom of worship as well as the maintenance of peace and good order. . . ." Id. The New Mexico Court of Appeals held similarly in New Mexico v. Vogenthaler , 69 N.M. 150, 545 P.2d 112 (Ct. App. 1976), when it sus­ tained against challenge a statute prohibiting desecration of a church. Noting that "church" as u t i l i zed in the statute refers to places of worship generally and not only to Christian institutions, the court found that the provision "...does not advance religion; al l i t does is 74 -4­ to provide a penalty for conduct result ing in damage to a church." Id . , 545 P.2d at 114. The court also rejected the defendant's argument that to penalize desecration of a church as a greater crime than the criminal d e s t r u c t i o n of other kinds of property was a v io la t ion of equal protec­ tion rights, noting that certain of the elements necessary to establish violation of the challenged statute were distinguishable from those ordinarily necessary to establish the crime of criminal destruction. Moreover, the court noted, ...even if the statutes were the same, there is a rational basis for t reat ing cr iminal damage to a church d i f ferent ly than cr iminal damage to other property. Churches "uniquely contribute to the pluralism of American society by their religious activities." ...Neutrality of the state toward religion "does not dictate obliteration of all our religious traditions." ...A rational basis for treating criminal damage to a church differently than criminal damage to o ther property is the role of re l ig ion in society as a whole. Id., 545 P.2d at 115. 1 The cou r t s ' conclusions in Ri ley and Vogenthaler seem correct when one applies the tripartite test, established by the U.S. Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971), for determining whether specif ic governmental act iv i t ies are permissible under the Establ ishment Clause. The proposed leg is la t ion serves the legit imate secular concern State courts have similarly rejected Establishment Clause challenges to zoning ordinances which prohibit the sale of liquor wi th in, a particular distance of a church. See Horne v. Hernando County, 297 So. 2nd 60­ (Fla. D. Ct. App. 1974); Arno v. Alcoholic Beverages Control Commission, 364 N.E.2nd 1223 (Mass. 1979). Compare Larkin v. Grenoel's Dep, Inc., 459 U.S. 116 (1962) (state may not vest in church d isc re t ion to deny appl icat ions for l iquor licenses within cer ta in distance of church). 1 77 - 7 ­ charged the defendants w i t h c o n s p i r i n g t o prevent the blacks from exercising, among other rights, their rights to "freedom of speech, movement, a s s o c i a t i o n and assembly . . . . " Id. at 91. However, the Court cautioned t h a t the sect ion could not be construed as a general federal to r t law, since the s t a t u t e ' s emphasis on equal i ty required the finding of an " i n v i d i o u s l y discriminatory motivat ion" by an ind iv idual in order for him to be prosecuted thereunder. I d . at 102. Later cases, i n c l u d i n g a recent Supreme Court decision, have expressly denied that section 1985(3) is applicable to all non-private conspiracies in derogation of rights guaranteed by the first Amendment. Thus, in Arnold v. Tiffany, 487 F. 2d 216 (9th Cir. 1973), cert. den., 415 U.S. 984 (1974), the Ninth Circuit Court of Appeals dismissed a sect ion 1985(3 ) c l a i m , because there had been no invidious discrimi­ nat ion in a p r i v a t e conspi racy to prevent newspaper dealers f rom c rea t ing a t rade a s s o c i a t i o n . That court s ta ted that pr ivate inter­ ference with the r i g h t of association was, by d e f i n i t i o n , not a depri­ vation of a right of a citizen of the United States (i.e., not a right protected under the privileges and immunities clause to which section 1985(3) refers) , since al l First Amendment r ights are only r ights against interference by the state. However, since the ruling was based on the court of appeals' finding as to congressional purpose, the issue of whether Congress had power to protect First Amendment rights from pr iva te consp i rac ies was not reached . S imi la r ly , in Oakes v . C i ty o f Fairhope, 515 F. Supp. 1004, 1045-46 (S.D. Ala. 19-1), a district court, c i t ing Arno ld and Gr i f f in , exp l ic i t l y he ld tha t sec t ion 1985(3 ) d id not 78 - 8 ­ apply to claims under the F i r s t Amendment (in that case a free speech c l a i m ) . The court found that the provision in section 1985(3) which protects against conspiracies to deprive others of equal protection of the laws was not aimed at conspiracies i n derogation of particular substantive rights. The Supreme Court apparently confirmed the foregoing reading of Griffin when, in Scott, it held that nonunion laborers who had been intimidated by a group of union workers f rom exercising their First Amendment r ights had no claim under section 1985(3): "a conspiracy to violate First Amendment rights is not made out without proof of state involvement." 463 U.S. at 832. Gr i f f in was distinguished as having involved a set of facts that proved deprivation of rights other than those arising under the First Amendment: The complaint in Griffin alleged, among other things, a deprivat ion of F i rs t Amendment rights, but we did not sustain the action on the basis of that allegation and paid it scant a t ten t ion . Instead, we upheld the application of § 1985(3) to private conspiracies aimed at interfering with rights constitu­ t iona l l y protected against pr ivate, as w e l l as of f ic ia l , encroachment. 463 U.S. at 833.2 Gr i f f in was further distinguished as having been a One case, decided twelve y e a r s b e f o r e S c o t t , did uphold t h e a p p l i c a t i o n of section 1985(3) to private conspiracies to deprive others of First Amendment rights. In Action v. Canon, 450 F.2d 1227 (8th Cir. 1971), the court held that a church could enjoin demonstrators from entering its property, disrupting its services and thus depriving its members of equal free exercise rights. If the Fourteenth Amendment protected free exercise rights from state interference, the court reasoned, the Congress was entitled to protect that right, along with all other Fourteenth Amendment rights, from private interference. Id. at 1234-35. However, in Act ion racial motivat ions appear to have been impl icated. Id. at 1232. In any event, Action was criticized in Arnold, by implica­ 2 79 -9 ­ case involving "an aminus against Negroes and those who supported them." 463 U.S. at 835. Section 1 9 8 5 ( 3 ) , the Court held, was simply not intended to afford protection to those who were the subject of a private conspiracy based on the victims' membership in an economic group. 463 U.S. at 836-38. In sum, Scott confirmed that section 1985(3) may reach private conspiracies, but only in cases where the right which is the subject of in ter ference is one c o n s t i t u t i o n a l l y protected against individual encroachment or where interference with a right is motivated by a very l imited range of prohibited motivations. The Court has similarly declined to apply 18 U.S.C. § 241 (1969), which cr iminal ly penalizes conspiracy "to in jure , oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any [consti­ tutional or s ta tutory] r ight ," to private acts in derogation of rights constitutionally protected only against governmental interference. That is, section 241 has been interpreted so as not to " . . .g ive substantive, as opposed to remedial, implementation to any rights secured by [the Equal Protection Clause of the Fourteenth Amendment]." United States v. Guest. 363 U.S. 745, 755 (1966) . Accordingly, section 241 does not tion, as standing for the "novel" argument that " . . . the elimination of the state action requirement by Gr i f f in extends [First Amendment rights] as a bar against private interference as well as state action in section 1985(3) suits." 487 F.2d at 219, n.3. Scott supports Arnold's reading of section 1985(3). 463 U.S. at 833. In United States v. Bledsoe, 728 F.2d 1094 (8th Cir.), cert. den., 105 S. Ct. 136 (1964), a court of appeals declined to accept that Scott had overruled entirely Action's f inding that section 1985(3) extends to certain private actions. However, that court did suggest that Scott had rejected Action's extension of section 1985(3) so as to protect First Amendment rights generally. 728 F.2d at 1097. 4 82 - 12 ­ 728 F.2d 1094 (8th Cir.), cert. den., 105 S. Ct. 136 (1984) (citing Jones v. Mayer Co., 392 U.S. 409, 438-39 (1968)). However, in contrast to the authorization provided by the Thirteenth Amendment, the U.S. Supreme Court has not definitively determined that section 5 of the Fourteenth Amendment, which provides that "Congress shall have power to enforce by appropriate legislation, the provisions of this article," generally authorizes Congressional enactments with respect to private act ions . 4 Accordingly, i t is not se t t l ed that section 1985(3) may c o n s t i t u t i o n a l l y be interpreted so as to provide a remedy for actions based on aminus toward a particular religious group. Moreover, even if Congress may enact legislation protecting against private act ions based on re l ig ious aminus under section 5 of the Fourteenth Amendment, the First Amendment has no comparable provision. A concern that First Amendment r ights may not be subject to the same Federal authority to protect against private abrogation as the right to equal protection of law -- assuming even the latter authority exists -­ might be met by attempting to provide an anchor for the proposed bills A number of justices have advocated a reading of section 5 which would authorize the Congress to enact legislation directed at private acts in derogation of Fourteenth Amendment rights otherwise only protected against the state. See, e .g . , Heart of Atlanta Motel, Inc. v. United States, 379 U.S. 241, 266 (Douglas, J., concurring); Guest, 363 U.S. at 762 (Clark, J., concurring), 777 (Brennan, J., concurring). But in United States v. Bledsoe the court of appeals relied on section 5 as authority for the extension of section 1985(3) so as to reach private actions, but felt it necessary also to rely on the far clearer authority granted under the Thirteenth Amendment. 726 F.2d at 1097. 83 -13­ in the equal protect ion clause. Thus, the words, " in the enjoyment of equal r igh ts of" could be inserted before the words "the free exercise of religious beliefs" at page 2, line 5 of H.R. 665. III. Interstate Commerce Clause as a Basis for Federal Criminalization of Pr ivate Acts i n Derogation of Constitut ional ly Protected Activi t ies. Significantly, even while finding that in enacting section 1985(3) Congress had not intended to afford broad substantive protection against private encroachments on c iv i l r ights, the Scott Court expl ici t ly stated that under the Commerce Clause Congress has the power to forbid such private encroachments. Id. at 833. With respect to the existence of such congressional power under the Commerce Clause it appears that both the Court's majority and minority were in agreement. See id. at 833, 849 n. 14. The U.S. Supreme Court has confirmed the Congress' power to protect civil rights from violation by private individuals as part of the broad authority granted by the Commerce Clause. As the Court held in Heart of Atlanta Motel, Inc. v . United States, 379 U.S. 241, 258 (1964), in upholding the authority of Congress to prohibit racial discrimination by a restaurant: [T]he power of Congress to promote interstate commerce also includes the power to regulate the local incidents thereof, including loca l a c t i v i t i e s in both the States of origin and 5 84 -14­ dest ina t ion , which might have a substantial and harmful effect upon that commerce. I t is on th is basis that the Civi l Rights Act of 1964, 42 U.S.C. § 2000e et seq. ( 1 9 8 1 ) , which prohibi ts discrimination or segregation on the grounds of race, color, religion or national origin in the operation of a place of public accommodation if i ts operations affect commerce, has been upheld. I d . ; accord, Katzenbach v. McClung, 379 U.S. 294 (1964). In these cases upholding civil rights legislation, the Court placed rel iance on congressional findings that discriminatory practices have substantial economic effect on interstate commerce. I t appears reason­ able , then, to assume that Congress, upon a finding of impact on commerce, is also empowered under the Commerce Clause to forbid private encroachments upon First Amendment rights such as the free exercise of religion. After all, as has already been stated, neither the First nor the Fourteenth Amendments protect individuals from the acts of other individuals.5 However, there must be suf f ic ient basis in each case for finding that the effect of a regulated activity on interstate commerce is not de minimis, and is, in fact, substantial. See Katzenbach v. McClung, 379 But see the discussion at page 12 of this memorandum, in which it is noted that the First Amendment does not include an "enabling clause" comparable to section 5 of the Fourteenth Amendment. Because of this d i f ference , it does not follow that Congress' authority under the Commerce Clause to enact legislation protecting equal protection rights against individual encroachment necessarily entails authority to enact legislation similarly protective of First Amendment rights. A "belt and suspenders" approach might make a desiratum of additional language of the type suggested at page 13, supra, even if the Commerce Clause is relied upon as the primary source of congressional authority. 87 -17­ alone and without qualif ication, might be considered vague and/or over­ broad enough so as to encompass speech activit ies protected under the First Amendment. This concern may be met by inserting the words "by force or by threat of force" before the words "intimidates any persons" at line 4 of page 2 of the bill. V. Conclusion. In sum, the Commerce Clause represents the most l ikely source of Congressional authority to enact leg is la t ion intended to safeguard individuals in the exercise of their free exercise rights. Moreover, issues of constitutionality aside, limiting a federal "hate crimes" act to activities involving interstate activity would constitute an impor­ tant acknowledgement that protection of individuals from such crimes is a primary responsibi l i ty of state and local authorities while leaving the door open for federal action in appropriate circumstances. We therefore recommend that any "hate crimes" bill contain an interstate act iv i t ies provision. The following suggestions might also be considered in order to deal with other concerns that have been discussed: (1) insertion of the words " in the enjoyment of equal rights of" before the words "the free exercise of rel igious be l ie fs" in the context of language such as appears at page 2, line 5 of H.R. 665; (ii) persons who injure or intimidate others in the free exercise of their re l ig ious beliefs should be subject to penalty, without reference to specific symbols utilized by 88 -18­ the offenders in causing such injury or intimidation; and (iii) the word "int imidates ," if used in the b i l l , should bear the modifier "by force or by threat of force." B040- (NAD-2) /ar (3/20/86) 86-630 89 CONGRESSWOMAN BOBBI FIEDLER TESTIMONY SUBCOMMITTEE ON CRIMINAL JUSTICE HOUSE JUDICIARY COMMITTEE JUNE 19, 1985 Thank you, Mr. Chairman, for the opportunity to speak before your committee and join with you and our colleague, Mr. Glickman, and other Members who have introduced legislation to address the issue of religious desecration. I wish I did not have to be here today. But the problem which I have to speak to, the desecration of churches and synagogues, has not gone away since I first introduced this legislation four years ago. In 1984, after a two year decline, acts of desecration were on the rise again, 715 against Jewish communities alone. That means swastikas splashed on the walls of synagogues, graves destroyed, sacred books burned, and hate posters plastered on the walls of schools for young children to see. Last summer, on the Jewish holy day of Tish B'Av, hatemongers placed anti-Semitic posters on the walls of five synagogues in my home state of California. Maybe it was irony, maybe those twisted minds had done their homework: Tish B'Av is the day when Jews commemorate the destruction of their ancient temples in Jerusalem. These crimes of hate are occurring nationwide. Though New York and California have been most affected, 30 other states and the District of Columbia have their own ugly incidents to report. Nor are Jews the only victims. Catholics, Baptists, Buddhists and members of other faiths have found their places of worship torched, ransacked or vandalized. These incidents take on even greater meaning today, when we read of right-wing extremist networks plotting race war and killing policemen