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In late July we reported that the U.S. Senate passed the Defense Department authorization bill on which the Matthew Shepard Hate Crimes Prevention Act is attached as an amendment. The next step is a Conference Committee to work out differences between the House and Senate versions of the authorization legislation. At the time HRC Senior Policy Advocate David Stacy explained the process:
During the month of August, while the Congress is in recess, House and Senate staff will work out differences between the House and Senate bills. Most of these decisions are unrelated to hate crimes and can be worked out at the staff level. Key decisions will be made by Senators and Representatives when they return in September. Most important among these will be the final decision about whether to keep the Matthew Shepard Act. Beyond that threshold question, which we fully expect will be an emphatic “YES,” decisions will have to be made about the amendments passed by the Senate this week.
So Congress is now back from recess and, even in the midst of the continuing debate over health care reform, House and Senate leaders are finalizing negotiations over the Defense bill — including the Matthew Shepard Hate Crimes Prevention Act. This week, HRC sent a letter [link in pdf, the full text follows the jump] to the relevant committee chairs emphasizing our recommendations on the conference report. Namely, that they retain the hate crimes provisions while removing the unnecessary and harmful First Amendment, death penalty and Attorney General guidelines provisions.
We’ll continue to provide updates as the legislation makes its way to President Obama’s desk for his promised signature.
Full text of the letter:
Dear Chairman Levin and Chairman Skelton:
On behalf of the Human Rights Campaign and our 750,000 members nationwide, we are writing today to urge you to retain the Senate-passed hate crimes provisions in the final version of S. 1390, the FY2010 Department of Defense Authorization measure – without the adopted language on the First Amendment, death penalty and mandatory new guidelines for hate crimes prosecutions. These amendments were proposed by opponents of the legislation as “poison pills” to try to derail the underlying hate crimes amendment). We urge you to remove these provisions because they are unnecessary and harmful.
The Senate-passed hate crimes provisions, introduced as S. 909, the Matthew Shepard Hate Crimes Prevention Act, will strengthen existing federal hate crimes 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, H.R. 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.
Yet, at a time when Congress is poised to advance civil rights protections against the lesbian, gay, bisexual and transgender (LGBT) citizens, three amendments offered by opponents of the legislation constitute a disturbing step backward – and raise the prospect of unequal, politically-motivated, shifting standards of justice in applying the new hate crimes law in the future.
The Death Penalty Amendments Should be Stricken from the Final Bill
One amendment, offered by Senator Sessions, would add the death penalty to the penalty provisions of the Matthew Shepard Act. We strongly oppose this provision. Another amendment, offered by Senator Kennedy, seeks to ameliorate the effects of the Sessions amendment by adding additional criteria for the use of the death penalty. The Kennedy amendment must remain should the Sessions amendment not be removed. However, HRC strongly opposes the addition of any death penalty amendment to the Matthew Shepard Act and urges the removal of both provisions from the legislation.
No version of the Matthew Shepard Act 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. Additionally, the death penalty is irreversible and highly controversial – with significant doubts about its deterrent effect and clear evidence of disproportionate application against poor people.
Importantly, the vast majority of hate crimes are prosecuted by state and local officials. Failure to include the death penalty in the Matthew Shepard Act, 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 offered by Senator Sessions and added by the Senate. 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.” We strongly oppose this provision.
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. Members 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.
Section 7 of the Matthew Shepard Act already requires the Attorney General to certify that a crime meets the requirement of the statute before initiating any prosecution. 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-established 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.
The Brownback First Amendment Provision Should be Stricken from the Final Bill
One adopted amendment, offered by Senator Brownback, would add superflous language regarding the First Amendment to the bill. We strongly oppose this provision.
The Brownback amendment is redundant and unnecessary. The amendment restates First Amendment protections already contained in both the Matthew Shepard Act and the United States Constitution. Further, the amendment contains confusing language regarding religious beliefs and physical violence that unnecessarily complicates the protections already contained in the Act.
State hate crimes laws have been around for decades and the current federal hate crimes law has been in place since 1968; not once has anyone in our country actually been prosecuted for speech. There is no evidence that additional language is needed to protect rights already explicitly address by the Act and enshrined in our Constitution.
The Matthew Shepard Act is a carefully crafted measure designed to safeguard constitutional rights. The language of the Act was developed in close consultation with the Department of Justice and contains explicit provisions clarifying that First Amendment rights are protected. Additionally, the Act contains language that makes clear that speech and association rights will not be burdened. The protections contained in this Act are strong, explicit and clear.
For more than a decade, we have worked on behalf of improved federal response to hate violence against the LGBT community. The Matthew Shepard Act will accomplish this goal.
We urge you to retain the hate crimes provisions, while removing the unnecessary and harmful First Amendment, death penalty and Attorney General guidelines provisions. For more information, please contact David Stacy at 202-572-8959 or David.Stacy@hrc.org. Thank you.
Sincerely,
Allison Herwitt
Legislative Director
Published Date: 09/16/2009
SECTION: Politics & Law
| REGION: Washington DC
SOURCE: HRC Back Story
Category: Hate Crimes
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