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111th CONGRESS
1st Session
S. 909
To provide Federal assistance to States, local jurisdictions,
and Indian tribes to prosecute hate crimes, and for other purposes.
IN THE SENATE OF THE UNITED STATES
April 28, 2009
Mr. REID (for Mr. KENNEDY (for himself, Mr. LEAHY, Ms. SNOWE, Ms.
COLLINS, Mr. SPECTER, Mr. SCHUMER, Mr. DURBIN, Mrs. FEINSTEIN, Mr.
LEVIN, Ms. MIKULSKI, Mr. WHITEHOUSE, Mr. CARDIN, Ms. KLOBUCHAR, Mr.
LIEBERMAN, Mrs. GILLIBRAND, Mr. MERKLEY, Mr. REED, Mr. NELSON of Florida,
Mr. KERRY, Mr. BINGAMAN, Mr. DODD, Mr. BAYH, Mr. UDALL of Colorado,
Mrs. SHAHEEN, Mr. HARKIN, Mr. BROWN, Mrs. MURRAY, Mr. CASEY, Mr. JOHNSON,
Mr. LAUTENBERG, Mr. NELSON of Nebraska, Ms. LANDRIEU, Ms. CANTWELL,
and Mr. AKAKA)) introduced the following bill; which was read twice
and referred to the Committee on the Judiciary
A BILL
To provide Federal assistance to States, local jurisdictions,
and Indian tribes to prosecute hate crimes, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the `Matthew Shepard Hate Crimes Prevention Act'.
SEC. 2. FINDINGS.
Congress makes the following findings:
(1) The incidence of violence motivated by the actual or perceived race,
color, religion, national origin, gender, sexual orientation, gender identity,
or disability of the victim poses a serious national problem.
(2) Such violence disrupts the tranquility and safety of communities and
is deeply divisive.
(3) State and local authorities are now and will continue to be responsible
for prosecuting the overwhelming majority of violent crimes in the United
States, including violent crimes motivated by bias. These authorities can
carry out their responsibilities more effectively with greater Federal
assistance.
(4) Existing Federal law is inadequate to address this problem.
(5) A prominent characteristic of a violent crime motivated by bias is that
it devastates not just the actual victim and the family and friends of
the victim, but frequently savages the community sharing the traits that
caused the victim to be selected.
(6) Such violence substantially affects interstate commerce in many ways,
including the following:
(A) The movement of members of targeted groups is impeded, and members
of such groups are forced to move across State lines to escape the incidence
or risk of such violence.
(B) Members of targeted groups are prevented from purchasing goods and
services, obtaining or sustaining employment, or participating in other
commercial activity.
(C) Perpetrators cross State lines to commit such violence.
(D) Channels, facilities, and instrumentalities of interstate commerce
are used to facilitate the commission of such violence.
(E) Such violence is committed using articles that have traveled in interstate
commerce.
(7) For generations, the institutions of slavery and involuntary servitude
were defined by the race, color, and ancestry of those held in bondage.
Slavery and involuntary servitude were enforced, both prior to and after
the adoption of the 13th amendment to the Constitution of the United States,
through widespread public and private violence directed at persons because
of their race, color, or ancestry, or perceived race, color, or ancestry.
Accordingly, eliminating racially motivated violence is an important means
of eliminating, to the extent possible, the badges, incidents, and relics
of slavery and involuntary servitude.
(8) Both at the time when the 13th, 14th, and 15th amendments to the Constitution
of the United States were adopted, and continuing to date, members of certain
religious and national origin groups were and are perceived to be distinct
`races'. Thus, in order to eliminate, to the extent possible, the badges,
incidents, and relics of slavery, it is necessary to prohibit assaults
on the basis of real or perceived religions or national origins, at least
to the extent such religions or national origins were regarded as races
at the time of the adoption of the 13th, 14th, and 15th amendments to the
Constitution of the United States.
(9) Federal jurisdiction over certain violent crimes motivated by bias enables
Federal, State, and local authorities to work together as partners in the
investigation and prosecution of such crimes.
(10) The problem of crimes motivated by bias is sufficiently serious, widespread,
and interstate in nature as to warrant Federal assistance to States, local
jurisdictions, and Indian tribes.
SEC. 3. DEFINITION OF HATE CRIME.
(1) the term `crime of violence' has the meaning given that term in section
16, title 18, United States Code;
(2) the term `hate crime' has the meaning given such term in section 280003(a)
of the Violent Crime Control and Law Enforcement Act of 1994 (28 U.S.C.
994 note); and
(3) the term `local' means a county, city, town, township, parish, village,
or other general purpose political subdivision of a State.
SEC. 4. SUPPORT FOR CRIMINAL INVESTIGATIONS AND PROSECUTIONS BY STATE,
LOCAL, AND TRIBAL LAW ENFORCEMENT OFFICIALS.
(a) Assistance Other Than Financial Assistance-
(1) IN GENERAL- At the request of State, local, or tribal law enforcement
agency, the Attorney General may provide technical, forensic, prosecutorial,
or any other form of assistance in the criminal investigation or prosecution
of any crime that--
(A) constitutes a crime of violence;
(B) constitutes a felony under the State, local, or tribal laws; and
(C) is motivated by prejudice based on the actual or perceived race, color,
religion, national origin, gender, sexual orientation, gender identity,
or disability of the victim, or is a violation of the State, local, or
tribal hate crime laws.
(2) PRIORITY- In providing assistance under paragraph (1), the Attorney General
shall give priority to crimes committed by offenders who have committed
crimes in more than one State and to rural jurisdictions that have difficulty
covering the extraordinary expenses relating to the investigation or prosecution
of the crime.
(1) IN GENERAL- The Attorney General may award grants to State, local, and
tribal law enforcement agencies for extraordinary expenses associated with
the investigation and prosecution of hate crimes.
(2) OFFICE OF JUSTICE PROGRAMS- In implementing the grant program under this
subsection, the Office of Justice Programs shall work closely with grantees
to ensure that the concerns and needs of all affected parties, including
community groups and schools, colleges, and universities, are addressed
through the local infrastructure developed under the grants.
(A) IN GENERAL- Each State, local, and tribal law enforcement agency that
desires a grant under this subsection shall submit an application to
the Attorney General at such time, in such manner, and accompanied by
or containing such information as the Attorney General shall reasonably
require.
(B) DATE FOR SUBMISSION- Applications submitted pursuant to subparagraph
(A) shall be submitted during the 60-day period beginning on a date that
the Attorney General shall prescribe.
(C) REQUIREMENTS- A State, local, and tribal law enforcement agency applying
for a grant under this subsection shall--
(i) describe the extraordinary purposes for which the grant is needed;
(ii) certify that the State, local government, or Indian tribe lacks
the resources necessary to investigate or prosecute the hate crime;
(iii) demonstrate that, in developing a plan to implement the grant,
the State, local, and tribal law enforcement agency has consulted and
coordinated with nonprofit, nongovernmental victim services programs
that have experience in providing services to victims of hate crimes;
and
(iv) certify that any Federal funds received under this subsection will
be used to supplement, not supplant, non-Federal funds that would otherwise
be available for activities funded under this subsection.
(4) DEADLINE- An application for a grant under this subsection shall be approved
or denied by the Attorney General not later than 180 business days after
the date on which the Attorney General receives the application.
(5) GRANT AMOUNT- A grant under this subsection shall not exceed $100,000
for any single jurisdiction in any 1-year period.
(6) REPORT- Not later than December 31, 2010, the Attorney General shall
submit to Congress a report describing the applications submitted for grants
under this subsection, the award of such grants, and the purposes for which
the grant amounts were expended.
(7) AUTHORIZATION OF APPROPRIATIONS- There is authorized to be appropriated
to carry out this subsection $5,000,000 for each of fiscal years 2010 and
2011.
SEC. 5. GRANT PROGRAM.
(a) Authority To Award Grants- The Office of Justice Programs of the Department
of Justice may award grants, in accordance with such regulations as the Attorney
General may prescribe, to State, local, or tribal programs designed to combat
hate crimes committed by juveniles, including programs to train local law
enforcement officers in identifying, investigating, prosecuting, and preventing
hate crimes.
(b) Authorization of Appropriations- There are authorized to be appropriated
such sums as may be necessary to carry out this section.
SEC. 6. AUTHORIZATION FOR ADDITIONAL PERSONNEL TO ASSIST STATE, LOCAL,
AND TRIBAL LAW ENFORCEMENT.
There are authorized to be appropriated to the Department of Justice, including
the Community Relations Service, for fiscal years 2010, 2011, and 2012 such
sums as are necessary to increase the number of personnel to prevent and
respond to alleged violations of section 249 of title 18, United States Code,
as added by section 7 of this Act.
SEC. 7. PROHIBITION OF CERTAIN HATE CRIME ACTS.
(a) In General- Chapter 13 of title 18, United States Code, is amended by adding
at the end the following:
`Sec. 249. Hate crime acts
`(1) OFFENSES INVOLVING ACTUAL OR PERCEIVED RACE, COLOR, RELIGION, OR NATIONAL
ORIGIN- Whoever, whether or not acting under color of law, willfully causes
bodily injury to any person or, through the use of fire, a firearm, a dangerous
weapon, or an explosive or incendiary device, attempts to cause bodily
injury to any person, because of the actual or perceived race, color, religion,
or national origin of any person--
`(A) shall be imprisoned not more than 10 years, fined in accordance with
this title, or both; and
`(B) shall be imprisoned for any term of years or for life, fined in accordance
with this title, or both, if--
`(i) death results from the offense; or
`(ii) the offense includes kidnapping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse, or an
attempt to kill.
`(2) OFFENSES INVOLVING ACTUAL OR PERCEIVED RELIGION, NATIONAL ORIGIN, GENDER,
SEXUAL ORIENTATION, GENDER IDENTITY, OR DISABILITY-
`(A) IN GENERAL- Whoever, whether or not acting under color of law, in
any circumstance described in subparagraph (B) or paragraph (3), willfully
causes bodily injury to any person or, through the use of fire, a firearm,
a dangerous weapon, or an explosive or incendiary device, attempts to
cause bodily injury to any person, because of the actual or perceived
religion, national origin, gender, sexual orientation, gender identity
or disability of any person--
`(i) shall be imprisoned not more than 10 years, fined in accordance
with this title, or both; and
`(ii) shall be imprisoned for any term of years or for life, fined in
accordance with this title, or both, if--
`(I) death results from the offense; or
`(II) the offense includes kidnapping or an attempt to kidnap, aggravated
sexual abuse or an attempt to commit aggravated sexual abuse, or
an attempt to kill.
`(B) CIRCUMSTANCES DESCRIBED- For purposes of subparagraph (A), the circumstances
described in this subparagraph are that--
`(i) the conduct described in subparagraph (A) occurs during the course
of, or as the result of, the travel of the defendant or the victim--
`(I) across a State line or national border; or
`(II) using a channel, facility, or instrumentality of interstate or
foreign commerce;
`(ii) the defendant uses a channel, facility, or instrumentality of interstate
or foreign commerce in connection with the conduct described in subparagraph
(A);
`(iii) in connection with the conduct described in subparagraph (A),
the defendant employs a firearm, dangerous weapon, explosive or incendiary
device, or other weapon that has traveled in interstate or foreign
commerce; or
`(iv) the conduct described in subparagraph (A)--
`(I) interferes with commercial or other economic activity in which
the victim is engaged at the time of the conduct; or
`(II) otherwise affects interstate or foreign commerce.
`(3) OFFENSES OCCURRING IN THE SPECIAL MARITIME OR TERRITORIAL JURISDICTION
OF THE UNITED STATES- Whoever, within the special maritime or territorial
jurisdiction of the United States, commits an offense described in paragraph
(1) or (2) shall be subject to the same penalties as prescribed in those
paragraphs.
`(b) Certification Requirement-
`(1) IN GENERAL- No prosecution of any offense described in this subsection
may be undertaken by the United States, except under the certification
in writing of the Attorney General, or his designee, that--
`(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.
`(2) RULE OF CONSTRUCTION- Nothing in this subsection shall be construed
to limit the authority of Federal officers, or a Federal grand jury, to
investigate possible violations of this section.
`(c) Definitions- In this section--
`(1) the term `bodily injury' has the meaning given such term in section
1365(h)(4) of this title, but does not include solely emotional or psychological
harm to the victim;
`(2) the term `explosive or incendiary device' has the meaning given such
term in section 232 of this title;
`(3) the term `firearm' has the meaning given such term in section 921(a)
of this title; and
`(4) the term `gender identity' for the purposes of this chapter means actual
or perceived gender-related characteristics.'.
(b) Technical and Conforming Amendment- The analysis for chapter 13 of title
18, United States Code, is amended by adding at the end the following:
SEC. 8. STATISTICS.
(a) In General- Subsection (b)(1) of the first section of the Hate Crime Statistics
Act (28 U.S.C. 534 note) is amended by inserting `gender and gender identity,'
after `race,'.
(b) Data- Subsection (b)(5) of the first section of the Hate Crime Statistics
Act (28 U.S.C. 534 note) is amended by inserting `, including data about
crimes committed by, and crimes directed against, juveniles' after `data
acquired under this section'.
SEC. 9. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the application
of such provision or amendment to any person or circumstance is held to be
unconstitutional, the remainder of this Act, the amendments made by this
Act, and the application of the provisions of such to any person or circumstance
shall not be affected thereby.
SEC. 10. RULE OF CONSTRUCTION.
For purposes of construing this Act and the amendments made by this Act the
following shall apply:
(1) RELEVANT EVIDENCE- Courts may consider relevant evidence of speech, beliefs,
or expressive conduct to the extent that such evidence is offered to prove
an element of a charged offense or is otherwise admissible under the Federal
Rules of Evidence. Nothing in this Act is intended to affect the existing
rules of evidence.
(2) VIOLENT ACTS- This Act applies to violent acts motivated by actual or
perceived race, color, religion, national origin, gender, sexual orientation,
gender identity or disability of a victim.
(3) CONSTITUTIONAL PROTECTIONS- Nothing in this Act shall be construed to
prohibit any constitutionally protected speech, expressive conduct or activities
(regardless of whether compelled by, or central to, a system of religious
belief), including the exercise of religion protected by the First Amendment
and peaceful picketing or demonstration. The Constitution does not protect
speech, conduct or activities consisting of planning for, conspiring to
commit, or committing an act of violence.
(4) FREE EXPRESSION- Nothing in this Act shall be construed to allow prosecution
based solely upon an individual's expression of racial, religious, political,
or other beliefs or solely upon an individual's membership in a group advocating
or espousing such beliefs.
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