Hate Crimes: Sketch of Selected Proposals and Congressional Authority

CRS Report for Congress
Hate Crimes: Sketch of Selected Proposals
and Congressional Authority
Charles Doyle
Senior Specialist
American Law Division
Hate crime legislation (S. 625/H.R. 1343), comparable to a measure which passed
the Senate as an amendment to the National Defense Authorization Act for Fiscal Year
2001 (but which was dropped prior to passage), has been introduced with a substantial
number of cosponsors in both the House and Senate. It outlaws hate crimes, establishes
a system of Justice Department and grant program assistance, and instructs the
Sentencing Commission to examine adult recruitment of juveniles to commit hate
crimes. It has been reported out of committee unchanged in the Senate, S.Rept. 107-147
(2002). An alternative (H.R. 74), more sweeping in its criminal provisions and more
modest in its grant provisions, has also been proposed.
In both alternatives, the newly established federal offenses take two forms and are
based on Congress’ legislative authority under the commerce clause, the legislative
sections of the Thirteenth, Fourteenth, and Fifteenth Amendment. One species outlaws
hate crimes committed on the basis of race, color, religion, national origin, gender,
sexual orientation, or disability under various commerce clause circumstances and
appears consistent with the Supreme Court’s pronouncements in Lopez and Morrison.
The other forbids hate crimes committed on the basis of race, color, religion or national
origin. Although its claim to Congressional authority seems strongest when based on
the Thirteenth Amendment and proscribing violence committed on the basis of race, its
hold appears otherwise more tenuous.
This report is an abridged version of CRS Report RL30681, Hate Crimes:
Summary of Selected Proposals and Congressional Authority, stripped of the footnotes,
authorities, and appendices of that report; for additional related information, see also
CRS Report 98-300, Hate Crime Legislation: An Update.
S. 625, the Local Law Enforcement Enhancement Act of 2001, introduced by
Senator Kennedy on March 27, 2001, has 50 cosponsors; its companion in the House,
H.R. 1343, the local Law Enforcement Hate Crimes Prevention Act of 2001, introduced
by Representative Conyers, has over 180 cosponsors. They are virtually identical to the

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Kennedy hate crime amendment (Amend. 3473) to the National Defense Authorization
Act for Fiscal Year 2001 (H.R. 4205) which passed the Senate during the 106th Congress
but was dropped from the bill prior to final enactment. Representative Jackson-Lee has
offered an alternative proposal (H.R. 74, the Hate Crimes Prevention Act of 2001), which
closely resembles her offering in the 106th Congress (H.R. 77). A second alternative from
the 106th Congress, Senator Hatch’s S. 1406, has, as yet, not been proposed in this
Overview of Proposals
New Crimes: S.625/H.R.1343 creates two federal crimes. Both outlaw willfully
causing physical injuries; using fire, firearms, or bombs; or attempting to do so —
motivated by certain victim characteristics (whether real or perceived). Offenders are
subject to imprisonment for not more than 10 years, or for any term of years or life if the
crime involves attempted murder, kidnapping, attempted kidnapping, rape or attempted
rape. The two offenses differ in that the first applies to crimes motivated by the victim’s
race, color, religion, or national origin and contains no other explicit federal jurisdictional
element. The second applies to crimes motivated by the victim’s gender, sexual
orientation, disability, race, color, religion, or national origin and contains a series of
alternative jurisdictional elements of a commerce clause stripe. Federal prosecution of
either offense would require certification of a senior Department of Justice official that
state or local officials are unable or unwilling to prosecute, favor federal prosecution, or
have prosecuted to a result that leaves federal interest in eradicating bias-motivated
violence unvindicated. H.R. 74 would establish the same two offenses, but has no
certification requirement.
Hate Statistics: The companion bills and H.R. 74 add gender to the list of predicate
characteristics for hate crime statistical collection purposes, section 280003(a) of the
Violent Crime Control and Law Enforcement Act of 1994.
Assistance to Local Law Enforcement: Unlike H.R. 74, the companion bills each call
for the Justice Department to assist state and tribal law enforcement efforts to investigate
and prosecute violent, felonious hate crimes, motivated by animosity towards those of the
victim’s race, color, religion, national origin, gender, sexual orientation, disability or other
characteristic found in the state’s or tribe’s hate crime law. They insist that priority be
given to cases in fiscally strapped rural jurisdictions and to cases involving multistate
Grants: Each of the proposals features a grant program to help the states combat
hate crimes committed by juveniles, authorizing such appropriations as are necessary. S.
625 /H.R. 1343 calls for an additional extraordinary grant program available to the states
and tribes to address investigative and prosecutorial needs that cannot otherwise be met.
The bills authorize appropriations of $5 million for each of fiscal years 2002 and 2003,
but no individual grant may not exceed $100,000 per year.
Sentencing Guidelines: Each proposal instructs the Sentencing Commission to study
and make any appropriate adjustments in the federal sentencing guidelines concerning
adult recruitment of juveniles to commit hate crimes, consistent with the other federal
sentencing guidelines and being sure to avoid duplication.

Legislative Powers of Congress
Commerce Clause: Congress enjoys only those legislative powers that flow from the
Constitution. U.S.Const. Amends. IX, X. The commerce clause, section 5 of the
Fourteenth Amendment and section 2 of the Thirteenth Amendment and Fifteenth
Amendment, are the grants of power most often mentioned when discussing Congress’
authority to proscribe hate crimes, and to enact other forms of civil rights legislation.
Under the commerce clause, Congress is empowered “to regulate commerce with
foreign nations, and among the several States, and with the Indian Tribes.” U.S.Const.
Art.I, §8, cl.3. The Supreme Court in Lopez and Morrison identified the three ways in
which Congress may exercise its prerogatives under the clause: “First, Congress may
regulate the use of the channels of interstate commerce. Second, Congress is empowered
to regulate and protect the instrumentalities of interstate commerce, or persons or things
in interstate commerce, even though the threat may come only from intrastate activities.
Finally, Congress’ commerce authority includes the power to regulate those activities
having a substantial relation to interstate commerce, . . . i.e., those activities that
substantially affect interstate commerce.”).
This last category, the “affects interstate commerce” category, can sometimes be the
most difficult to define for it may embrace what appears to be purely intrastate activity.
Morrison cited with approval the signposts of this aspect of the commerce power that
Lopez sought in vain when examining the Gun-Free Schools Act (18 U.S.C.
922(q)(1)(A)). First, the statute had “nothing to do with commerce or any sort of
economic enterprise, however broadly one might define those terms.” Second, “the
statute contained no express jurisdictional element which might limit its reach to a
discrete set of firearm possessions that additionally have an explicit connection with or
effect on interstate commerce.” Third, neither the statute “nor its legislative history
contains express congressional findings regarding the effects upon interstate commerce
of gun possession in a school zone.” Finally, the link between gun possession in a school
zone and commerce interest urged by the government (the cost of violent crime and
damage to national productivity caused by violent crime) was too attenuated without more
to support a claim to commerce clause authority.
In this last regard, Morrison observed, “[w]e accordingly reject the argument that
Congress may regulate noneconomic, violent criminal conduct based solely on that
conduct’s aggregate effect on interstate commerce. The Constitution requires a
distinction between what is truly national and what is truly local. . . The regulation and
punishment of intrastate violence that is not directed at the instrumentalities, channels, or
goods involved in interstate commerce has always been the province of the States.”
The hate crime proposals present two, somewhat different, claims to commerce
clause power. First, they create a federal crime for which an aspect of interstate
commerce is an element, i.e., in the case of H.R. 74: either that (a) “in connection with
the offense, the defendant or the victim travels in interstate commerce or foreign
commerce, uses a facility or instrumentality of interstate or foreign commerce, or engages
in any activity affecting interstate or foreign commerce; or (b) the offense is in or affects
interstate or foreign commerce;” and in the case of S. 625/H.R. 1343: either that (1) the
offense “occurs during the course of, or as a result of, the travel of the defendant or the
victim “ either (a) “across a State line or national border” or (b) “using a channel, facility,

or instrumentality of interstate or foreign commerce;” or (2) the defendant uses a channel,
facility, or instrumentality of interstate or foreign commerce” in the commission of the
offense; or (3) in connection with the offense “the defendant employs a firearm, explosive
or incendiary device, or other weapon that has traveled in interstate or foreign commerce;
or (4) the offense either (a) interferes with commercial or other economic activity in
which the victim is engaged at the time of the conduct; or (b) otherwise affects interstate
or foreign commerce.”
Then they create a second federal crime whose claim to a commerce clause nexus
must be more inferential, tied to the findings and the general nature and consequences of
hate crimes.
Morrison suggests that the findings and general nature of the offenses involved are
likely to be insufficient to support an assertion that the commerce clause empowers
Congress to enact the provisions. Morrison rejected virtually the same argument with
respect to a statute creating a civil remedy for the victims of gender-motivated violence.
Its success here would seem to depend on convincing the Court that race-motivated, or
color-motivated, or religion-motivated, or national origin-motivated violence are
somehow more commercially influential than gender-motivated violence.
Brighter seem the prospects for a judicial conclusion that the offenses that come with
commerce-explicit elements come within Congress’ commerce clause powers. They have
the distinct advantage of precluding conviction unless the prosecution can convince the
courts of the statutory nexus between the defendant’s conduct and the commerce
impacting element of the offense. Moreover, several of the elements involve preventing
the channels of commerce from becoming the avenues of destructive misconduct or
protecting the flow of commerce from destructive ingredients — the mark of
circumstances that indisputably fall within Congress’ authority under the commerce
Section 5 of the Fourteenth Amendment: Where the proposals seem beyond
Congress’ reach under the commerce clause they may be within the scope of other
legislative powers such as the legislative clauses of the Thirteenth, Fourteenth, and
Fifteenth Amendments. Morrison addresses the breadth of Congress’ legislative power
under section 5 of the Fourteenth Amendment. The Amendment guarantees certain civil
rights often by forbidding state or federal interference. Under section 5 the Congress is
vested with “power to enforce, by appropriate legislation, the [Amendment’s] provisions.”
Morrison pointed out that United States v. Harris held that section 5 did not vest
Congress with the power to enact a statute “directed exclusively against the action of
private persons, without reference to the laws of the state, or their administration by her
officers.” And in Civil Rights Cases, “we held that the public accommodation provisions
of the Civil Rights Act of 1875, which applied to purely private conduct, were beyond the
scope of the §5 enforcement power. . . . The force of the doctrine of stare decisis behind
these decisions stems not only from the length of time they have been on the books, but
also from the insight attributable to the Members of the Court at that time . . . [who]
obviously had intimate knowledge and familiarity with the events surrounding the
adoption of the Fourteenth Amendment.”
The statute in Morrison created a cause of action against private individuals who
perpetrated gender-motivated violence enacted in the face of evidence that the states often

failed to adequately investigate and prosecute such crimes. The authority under section
5, however, extends only to state action including the enactment of a “remedy corrective
in its character, adapted to counteract and redress the operation of such prohibited state
laws or proceedings of state officers.” The Morrison statute rested on the wrong side of
the divide, for its remedy fell not upon wayward state officials, but upon private
individuals. The hate crime proposals seem perilously comparable at best. They address
private misconduct, not the deficiencies of state action.
Section 2 of the Thirteen Amendment: The companion bills and H.R. 74 each stake
a claim to the legislative authority in section 2 of the Thirteen Amendment within their
findings. The Civil Rights Cases, considered so instructive with respect to Congressional
powers under the Fourteenth Amendment, also afforded the Court its first opportunity to
construe section 2 of the Thirteenth Amendment. Unlike, the Fourteenth, it speaks not
of state action, but declares “Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly convicted, shall exist within
the United States, or any place subject to their jurisdiction.” U.S.Const. Amend. XIII, §1.
It finishes with the stipulation that “Congress shall have power to enforce this article by
appropriate legislation.” U.S.Const. Amend. XIII, §2.
The Civil Rights Cases observed that section 2 “clothes Congress with power to pass
all laws necessary and proper for abolishing all badges and incidents of slavery in the
United States.” This power it concluded, however, reached “those fundamental rights
which appertain to the essence of citizenship” and but not the “social rights” (access
lodging, transportation, and entertainment) that Congress had by statute endeavored to
protect from racial discrimination.
The Court said little of section 2 for nearly a century thereafter until Jones v. Alfred
H. Mayer Co., which found that Congress might ban racial discrimination from real estate
transactions under the section. Almost in passing, Jones dismissed without repudiating
the social rights distinction: “Whatever the present validity of the position taken by the
majority on that issue—a question rendered largely academic by Title II of the Civil
Rights Act of 1964, 78 Stat. 243 (see Heart of Atlanta Motel v. United States, 379 U.S.
241; Katzenbach v. McClung, 379 U.S. 294 [confirming the Title’s validity as an exercise
of commerce clause power])—we note that the entire Court agreed upon at least one
proposition: The Thirteen Amendment authorizes Congress not only to outlaw all forms
of slavery and involuntary servitude but also to eradicate the last vestiges and incidents
of a society half slave and half free, by securing to all citizens, of every race and color, the
same right to make and enforce contracts, to sue, be parties, give evidence, and to inherit,
purchase, lease, sell and convey property, as is enjoyed by white citizens.”
Three years later in Griffin the Court confirmed that 42 U.S.C. 1985(3)(relating to
conspiracies in deprivation of the rights of citizenship) was within the scope of section
2 authority. Griffin opined that “Not only may Congress impose such liability, but the
varieties of private conduct that it may make criminally punishable or civilly remediable
extend far beyond the actual imposition of slavery or involuntary servitude. By the
Thirteenth Amendment, we commit ourselves as a Nation to the proposition that the
former slaves and their descendants should be forever free. To keep that promise,
Congress has the power under the Thirteenth Amendment rationally to determine what
are the badges and incidents of slavery, and the authority to translate that determination
into effective legislation. We can only conclude that Congress as wholly within its

powers under §2 of the Thirteen Amendment in creating a statutory cause of action for
Negro citizens who have been the victims of conspiratorial, racially discriminatory private
action aimed at depriving them of the basis rights that the law secures to all free men.”

403 U.S. at 105.

Section 2 envisions legislation for the benefit of those who bore the burdens slavery
and their descendants (race, color), but does it contemplate a wider range of beneficiaries
(e.g., religion, national origin). The hate crime proposals would have encloaked groups
subject to classification by “race, color, religion, or national origin.” In construing the
civil rights statutes enacted contemporaneously with the Thirteenth, Fourteenth and
Fifteenth Amendment, the Supreme Court held that Arabs and Jews would have been
considered distinct “races” at the time the statutes were passed and the Amendments
drafted, debated and ratified. Whether this would be considered sufficient to embrace all
religious discrimination is another question. Would Roman Catholics or Methodists, for
example, have been considered distinct “races” even in the Nineteenth Century?
Of course, even this expansion of beneficiaries does not ensure that the Court would
consider violence a badge or incident of slavery. Although commenting on its irrelevancy
in light of Congress’ use of commerce clause, even Jones did not go so far as to reject the
fundamental versus the social rights distinction of the Civil Rights Cases. Perhaps more
to the point, the anxiety of Morrison and Lopez lest an overly generous commerce clause
construction swallow all state criminal jurisdiction over violence might argue against the
prospect of the Court embracing violence as a badge or incident of slavery for purposes
of Congress’ legislative authority under section 2 of the Thirteenth Amendment.