Coalition Letter Re: House-Senate Conference on FY 2010 Department of Defense Authorization legislation

August 17, 2009

Dear Conferee:

We write, on behalf of the civil rights, religious, professional, civic, and educational groups below, to urge you to retain the Senate-passed hate crime provisions in the final version of this legislation – without the adopted language on the death penalty and mandatory new guidelines for hate crime prosecutions (which were added as a “poison pill” to try to eliminate the underlying hate crimes amendment). We urge you to eliminate both provisions because they are unnecessary and harmful.

As strong proponents of S. 909, the Matthew Shepard Hate Crimes Prevention Act (HCPA), we strongly supported the inclusion of this legislation as an amendment to S. 1390, the FY 2010 Department of Defense Authorization measure. The HCPA will strengthen existing federal hate crime laws by authorizing the Department of Justice to assist local authorities in investigating and prosecuting certain bias-motivated crimes. The bill will also provide authority for the federal government to prosecute some violent bias-motivated crimes directed against individuals on the basis of their sexual orientation, gender, gender identity, or disability. Current federal law does not provide sufficient authority for involvement in these cases.

Since the bill’s original introduction in 1997, this measure has repeatedly attracted majority, bipartisan support in both the Senate and the House. On April 29, 2009, the House of Representatives approved its version of this legislation, HR 1913, by a vote of 249-175. The Senate voted 63-28 to end debate and add its version, S. 909, to the FY 2010 Department of Defense Authorization legislation on July 16.

The bill has been endorsed by more than 300 national civil rights, professional, civic, education, and religious groups, and a number of the most important national law enforcement organizations in America – including the International Association of Chiefs of Police, the Major Cities Chiefs Association, the National District Attorneys Association, the National Organization of Black Law Enforcement Executives, and the Police Executive Research Forum.

Yet, at a time when Congress is poised to advance civil rights protections by promoting new Federal-state partnerships and providing new tools to address bias-motivated violence, two adopted amendments offered by Senator Sessions (a staunch opponent of the HCPA) constitute a disturbing step backward – and raise the prospect of unequal, politically-motivated, shifting standards of justice in applying the new hate crime law in the future.

The Death Penalty Amendment Should be Stricken from the Final Bill

One adopted amendment would add the death penalty to the penalty provisions of the HCPA. We strongly oppose this provision.

No version of the HCPA has ever included the death penalty. Senate and House sponsors of the bill and the very broad coalition of supporters have always opposed adding the death penalty to this legislation. The House of Representatives explicitly rejected a Motion to Recommit which included the death penalty when they approved this legislation.

The death penalty will make enforcement of this provision much more complicated and much more costly, diverting scarce resources that could better be used to deter and prevent these crimes in the first place.

The death penalty is irreversible and highly controversial – with significant doubts about its deterrent effect and clear evidence of disproportionate application against poor people. Moreover, there are serious, well-documented concerns about unequal and racially-biased application of the death penalty. According to the Justice Department’s Bureau of Justice Statistics, since 1977, blacks and whites have been the victims of murders in almost equal numbers, yet 80% of the people executed in that period were convicted of murders involving white victims.

Importantly, the vast majority of hate crimes are prosecuted by state and local officials. Failure to include the death penalty in the HCPA, which will be codified at 18 U.S.C. §249, will not impact state action. States with the death penalty are free to pursue that option.

The Attorney General Guidelines Provision Should be Stricken from the Final Bill

We also urge you to reject another provision added by the Senate as an amendment by Senator Sessions. This provision would require the Attorney General to promulgate guidelines with “neutral and objective criteria for determining whether a crime was motivated by the status of the victim.” Although the language sounds harmless and unobjectionable, this amendment is unnecessary – and threatens to inject politics into the Justice Department decision-making process in these cases. Senators should be especially concerned that this additional Attorney General guidance could vary from Administration to Administration, resulting in uncertainty and, possibly, an unequal application of this important law.

Moreover, the HCPA already requires the Attorney General to certify that a crime meets the requirement of the statute before initiating any prosecution:

(A) the State does not have jurisdiction;
(B) the State has requested that the Federal Government assume jurisdiction;
(C) the verdict or sentence obtained pursuant to State charges left demonstratively unvindicated the Federal interest in eradicating bias-motivated violence; or
(D) a prosecution by the United States is in the public interest and necessary to secure substantial justice.

This language tracks the very similar certification requirement from an existing statute, 18 U.S.C. § 245. FBI investigators and Justice Department prosecutors have had forty years of experience under this parallel statute to develop well-establish procedures governing the conduct of prosecutors – and for determining whether a case is bias-motivated and whether the Justice Department has jurisdiction to pursue it. There is no record of abuse by the Justice Department in selective prosecutions or in using its authority capriciously or arbitrarily. Therefore, there is no need to burden these prosecutions with another layer of guidance and another procedural obstacle.

For more than a decade, we have worked on behalf of improved federal response to hate violence. Now, with the strong support of President Obama and Attorney General Holder and strong majorities in the House and Senate, we are closer than ever to securing enactment of these provisions. We urge you to retain the hate crime provisions, while removing the unnecessary and harmful death penalty and Attorney General guidelines provisions.