Federalizing hate crimes: Symbolic politics, expressive law, or tool for criminal enforcement?

Boston University Law Review

Volumn 80, Issue 5, 2000, Pages 1227-1280

  Beale, Sara Sun ^a  

^a NONE

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EID: 0034553547     PISSN: 00068047     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (264)

1. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
2. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
3. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
4. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
5. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
6. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
7. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
8. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
9. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
10. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
11. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
12. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
13. Although hate crimes legislation has also been introduced in separate bills, in July 1999 and June 2000 hate crimes legislation was offered and passed in the Senate in the form of amendments to larger appropriations bills. In 1999, Senator Kennedy proposed the hate crimes measure as an amendment to the Justice-Commerce appropriations bill. See 145 CONG. REC. S9038 (daily ed. July 22, 1999) (Amend. 1324). This amendment was agreed to by unanimous consent. 145 CONG. REC. S9038 (recording agreement to amendments 1308 to 1341 ). Senator Kennedy's amendment was combined with an amendment proposed by Senator Hatch to become The Hate Crimes Prevention Act of 1999, Title IX of the Senate version of the appropriations bill. See S. 622, 106th Cong. (1999) (Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, 2000 (Engrossed Senate Amendment) Title IX). The House version did not include the Hate Crimes Prevention Act of 1999. See H.R. 1217, 106th Cong. (1999); News In Brief, 65 CRIM. L. REP. 591 (1999) (reporting differences between House and Senate versions of 2000 appropriations bill, including lack of hate crimes provision in House bill and Senate's refusal to agree to House version). The hate crimes provisions were not included in the compromise consolidated appropriations bill ultimately enacted after months of legislative maneuvering. For an overview of the complex process by which the various appropriations bills were ultimately combined in a consolidated appropriations act (including the numerous continuing resolutions and the presidential veto of an earlier version of the Commerce- Justice appropriations bill), and links to the various documents, see the Library of Congress's site, Current Status of FY2000 Appropriations Bills, (2000) 〈http://lcweb.loc.gov/global/legislative/appover.html#fn10〉. In June 2000, Senator Kennedy retitled his 1999 proposal the Local Law Enforcement Enhancement Act of 2000 and offered it as Amendment 3473 to the National Defense Authorization Act (S. 2549). See 146 CONG. REC. S5370 (daily ed. June 19, 2000). After two days of debate, the Kennedy amendment passed in a roll call vote. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). A hate crimes provision proposed by Senator Hatch also passed. See id. at S5428 (passage of Amend. 3474). On July 26, 2000, the House disagreed with the bill that incorporated the Senate Amendments, H.R. 4205, and agreed to go to conference. See 146 CONG. REC. H7058 (daily ed. July 26, 2000). The following independent bills incorporate Senator Kennedy's proposals: S. 622, 106th Cong. (1999); H.R. 1082, 106th Cong. (1999); H.R. 77, 106th Cong. (1999); and S. 1529, 105th Cong. (1997). These bills are not identical to the amendment passed by the Senate on June 20, 2000. A comparison of the bills and the June 2000 amendment reflects some changes in the jurisdictional provisions that appear to be responsive to issues raised in the hearings and particularly to the Supreme Court's decision in United States v. Morrison, 120 S. Ct. 1740, 1744 (2000) (noting that a "jurisdictional element establishing that the federal cause of action is in pursuance of Congress' regulation of interstate commerce" supports the finding of Congressional authority under the Commerce clause). To the extent that these proposals differ, this article focuses on the updated provisions in the June 2000 amendment.
14. The vote in favor of the Kennedy proposal in June 2000 was 57 to 42. See 146 CONG. REC. S5434 (daily ed. June 20, 2000). Thirteen Republicans voted in favor of the amendment: Burns, Chafee, Collins, DeWine, Jeffords, Lugar, Mack, Roth, Smith (Ore.), Snowe, Specter, Stevens, and Voinovich. Id. Byrd was the only Democrat that voted against it. Id.
15. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
16. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
17. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
18. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
19. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
20. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
21. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
22. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
23. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
24. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
25. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
26. The Hate Crimes Prevention Act of 1999, H.R. 1082, 106th Cong. (1999), parallels the Kennedy amendment proposed in 1999. See 145 CONG. REC. S9038 (daily ed. July 22, 1999). The House bill has garnered 192 cosponsors. See Bill Summary & Status for the 106th Congress, (2000) 〈http://thomas.loc.gov/cgi-bin/bdquery/z?106:h.r.01082:〉. For statements in support of the House bill, see, e.g., 146 CONG. REC. H4681 (daily ed. June 20, 2000) (statement of Rep. Jackson-Lee); 146 CONG. REC. E946 (daily ed. June 9, 2000) (statement of Rep. Hastings); 146 CONG. REC. E920 (daily ed. June 9, 2000) (statement of Rep. Johnson); 146 CONG. REC. E928 (daily ed. June 9, 2000) (statement of Rep. Gephart); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Baldwin); 146 CONG. REC. H3935 (daily ed. June 7, 2000) (statement of Rep. Nadler); 146 CONG. REC. H3932 (daily ed. June 7, 2000) (statement of Rep. Lampson); 146 CONG. REC. H3933 (daily ed. June 7, 2000) (statement of Rep. Davis); 145 CONG. REC. H9963 (daily ed. Oct. 13, 1999) (statement of Rep. Crowley).
27. By using the phrase "Kennedy proposal," I intend to encompass the common features of the amendments proposed under different titles in 1999 and 2000, as well as freestanding bills proposed by Senator Kennedy. To the extent these provisions differ, see supra note 1, this article focuses on the most recent version of the Kennedy proposal embodied in the June 2000 Senate amendment.
28. In addition to the adequacy of the constitutional basis for federal jurisdiction, the testimony at the hearings and the published commentary on hate crimes legislation also raise issues of the advisability of defining new bias offenses (as opposed to prosecuting the behavior under existing laws), and the First Amendment implications of defining these offenses according to the offender's motive or ideology. These issues were discussed in the hearings on the Hate Crimes Act, and have been the subject of scholarly attention elsewhere. See, e.g., Legislating Against Hate and Bias: Outline of Testimony Before the Congress of the United States, House of Representatives Committee on the Judiciary, 106th Cong. (1999) [hereinafter House 1999 Hearings] (statement of Heidi M. Hurd, Professor of Law and Philosophy and Co-director of the Institute for Law and Philosophy at the University of Pennsylvania) (arguing that hate crimes legislation is "il-liberal" because criminal laws should not punish emotional states and bad character traits); FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 80-109, 161-75 (1999) (concluding that hate crime laws do not violate the First Amendment and arguing that the expressive value of punishment justifies the more severe punishment of bias crimes); JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 79-91 (1998) (critiquing culpability of offender, harms caused to victims, impact on third parties, moral education, and other justifications offered for hate crime offenses), 111-29 (concluding that hate crime statutes constitute viewpoint discrimination and are necessarily at odds with the First Amendment); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. REV. 1015, 1039-44, 1081 (1997) (critiquing theoretical foundations of bias crime laws because one person has no proper interest in others' reasons for acting, and bias is an overbroad proxy for proper considerations such as harm to the victim); Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L. J. 507, 509 (1999) (arguing that hate crimes legislation may be warranted under a "fair protection paradigm" that considers the relative vulnerabilities to crime of various victims); Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. REV. 739, 742 (1999) (arguing that hate crimes (1) undermine the victim's psychological and moral need for individualized justice, (2) contribute to a racist culture that increases the risk of physical harm, and (3) rely upon a theory of human worth that is incompatible with our constitutional culture); George C. Thomas III, On Trial: Laws Against Hate Crimes, 36 CRIM. L. BULL. 3 (exploring First Amendment implications as well as justifications for hate crime laws and suggesting that laws might be justified on the basis of the added immorality of crimes where the victim is selected because of his or her weakness).
29. In addition to the adequacy of the constitutional basis for federal jurisdiction, the testimony at the hearings and the published commentary on hate crimes legislation also raise issues of the advisability of defining new bias offenses (as opposed to prosecuting the behavior under existing laws), and the First Amendment implications of defining these offenses according to the offender's motive or ideology. These issues were discussed in the hearings on the Hate Crimes Act, and have been the subject of scholarly attention elsewhere. See, e.g., Legislating Against Hate and Bias: Outline of Testimony Before the Congress of the United States, House of Representatives Committee on the Judiciary, 106th Cong. (1999) [hereinafter House 1999 Hearings] (statement of Heidi M. Hurd, Professor of Law and Philosophy and Co-director of the Institute for Law and Philosophy at the University of Pennsylvania) (arguing that hate crimes legislation is "il-liberal" because criminal laws should not punish emotional states and bad character traits); FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 80-109, 161-75 (1999) (concluding that hate crime laws do not violate the First Amendment and arguing that the expressive value of punishment justifies the more severe punishment of bias crimes); JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 79-91 (1998) (critiquing culpability of offender, harms caused to victims, impact on third parties, moral education, and other justifications offered for hate crime offenses), 111-29 (concluding that hate crime statutes
30. In addition to the adequacy of the constitutional basis for federal jurisdiction, the testimony at the hearings and the published commentary on hate crimes legislation also raise issues of the advisability of defining new bias offenses (as opposed to prosecuting the behavior under existing laws), and the First Amendment implications of defining these offenses according to the offender's motive or ideology. These issues were discussed in the hearings on the Hate Crimes Act, and have been the subject of scholarly attention elsewhere. See, e.g., Legislating Against Hate and Bias: Outline of Testimony Before the Congress of the United States, House of Representatives Committee on the Judiciary, 106th Cong. (1999) [hereinafter House 1999 Hearings] (statement of Heidi M. Hurd, Professor of Law and Philosophy and Co-director of the Institute for Law and Philosophy at the University of Pennsylvania) (arguing that hate crimes legislation is "il-liberal" because criminal laws should not punish emotional states and bad character traits); FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 80-109, 161-75 (1999) (concluding that hate crime laws do not violate the First Amendment and arguing that the expressive value of punishment justifies the more severe punishment of bias crimes); JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 79-91 (1998) (critiquing culpability of offender, harms caused to victims, impact on third parties, moral education, and other justifications offered for hate crime offenses), 111-29 (concluding that hate crime statutes constitute viewpoint discrimination and are necessarily at odds with the First Amendment); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. REV. 1015, 1039-44, 1081 (1997) (critiquing theoretical foundations of bias crime laws because one person has no proper interest in others' reasons for acting, and bias is an overbroad proxy for proper considerations such as harm to the victim); Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L. J. 507, 509 (1999) (arguing that hate crimes legislation may be warranted under a "fair protection paradigm" that considers the relative vulnerabilities to crime of various victims); Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. REV. 739, 742 (1999) (arguing that hate crimes (1) undermine the victim's psychological and moral need for individualized justice, (2) contribute to a racist culture that increases the risk of physical harm, and (3) rely upon a theory of human worth that is incompatible with our constitutional culture); George C. Thomas III, On Trial: Laws Against Hate Crimes, 36 CRIM. L. BULL. 3 (exploring First Amendment implications as well as justifications for hate crime laws and suggesting that laws might be justified on the basis of the added immorality of crimes where the victim is selected because of his or her weakness).
31. In addition to the adequacy of the constitutional basis for federal jurisdiction, the testimony at the hearings and the published commentary on hate crimes legislation also raise issues of the advisability of defining new bias offenses (as opposed to prosecuting the behavior under existing laws), and the First Amendment implications of defining these offenses according to the offender's motive or ideology. These issues were discussed in the hearings on the Hate Crimes Act, and have been the subject of scholarly attention elsewhere. See, e.g., Legislating Against Hate and Bias: Outline of Testimony Before the Congress of the United States, House of Representatives Committee on the Judiciary, 106th Cong. (1999) [hereinafter House 1999 Hearings] (statement of Heidi M. Hurd, Professor of Law and Philosophy and Co-director of the Institute for Law and Philosophy at the University of Pennsylvania) (arguing that hate crimes legislation is "il-liberal" because criminal laws should not punish emotional states and bad character traits); FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 80-109, 161-75 (1999) (concluding that hate crime laws do not violate the First Amendment and arguing that the expressive value of punishment justifies the more severe punishment of bias crimes); JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 79-91 (1998) (critiquing culpability of offender, harms caused to victims, impact on third parties, moral education, and other justifications offered for hate crime offenses), 111-29 (concluding that hate crime statutes constitute viewpoint discrimination and are necessarily at odds with the First Amendment); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. REV. 1015, 1039-44, 1081 (1997) (critiquing theoretical foundations of bias crime laws because one person has no proper interest in others' reasons for acting, and bias is an overbroad proxy for proper considerations such as harm to the victim); Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L. J. 507, 509 (1999) (arguing that hate crimes legislation may be warranted under a "fair protection paradigm" that considers the relative vulnerabilities to crime of various victims); Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. REV. 739, 742 (1999) (arguing that hate crimes (1) undermine the victim's psychological and moral need for individualized justice, (2) contribute to a racist culture that increases the risk of physical harm, and (3) rely upon a theory of human worth that is incompatible with our constitutional culture); George C. Thomas III, On Trial: Laws Against Hate Crimes, 36 CRIM. L. BULL. 3 (exploring First Amendment implications as well as justifications for hate crime laws and suggesting that laws might be justified on the basis of the added immorality of crimes where the victim is selected because of his or her weakness).
32. In addition to the adequacy of the constitutional basis for federal jurisdiction, the testimony at the hearings and the published commentary on hate crimes legislation also raise issues of the advisability of defining new bias offenses (as opposed to prosecuting the behavior under existing laws), and the First Amendment implications of defining these offenses according to the offender's motive or ideology. These issues were discussed in the hearings on the Hate Crimes Act, and have been the subject of scholarly attention elsewhere. See, e.g., Legislating Against Hate and Bias: Outline of Testimony Before the Congress of the United States, House of Representatives Committee on the Judiciary, 106th Cong. (1999) [hereinafter House 1999 Hearings] (statement of Heidi M. Hurd, Professor of Law and Philosophy and Co-director of the Institute for Law and Philosophy at the University of Pennsylvania) (arguing that hate crimes legislation is "il-liberal" because criminal laws should not punish emotional states and bad character traits); FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 80-109, 161-75 (1999) (concluding that hate crime laws do not violate the First Amendment and arguing that the expressive value of punishment justifies the more severe punishment of bias crimes); JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 79-91 (1998) (critiquing culpability of offender, harms caused to victims, impact on third parties, moral education, and other justifications offered for hate crime offenses), 111-29 (concluding that hate crime statutes constitute viewpoint discrimination and are necessarily at odds with the First Amendment); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. REV. 1015, 1039-44, 1081 (1997) (critiquing theoretical foundations of bias crime laws because one person has no proper interest in others' reasons for acting, and bias is an overbroad proxy for proper considerations such as harm to the victim); Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L. J. 507, 509 (1999) (arguing that hate crimes legislation may be warranted under a "fair protection paradigm" that considers the relative vulnerabilities to crime of various victims); Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. REV. 739, 742 (1999) (arguing that hate crimes (1) undermine the victim's psychological and moral need for individualized justice, (2) contribute to a racist culture that increases the risk of physical harm, and (3) rely upon a theory of human worth that is incompatible with our constitutional culture); George C. Thomas III, On Trial: Laws Against Hate Crimes, 36 CRIM. L. BULL. 3 (exploring First Amendment implications as well as justifications for hate crime laws and suggesting that laws might be justified on the basis of the added immorality of crimes where the victim is selected because of his or her weakness).
33. In addition to the adequacy of the constitutional basis for federal jurisdiction, the testimony at the hearings and the published commentary on hate crimes legislation also raise issues of the advisability of defining new bias offenses (as opposed to prosecuting the behavior under existing laws), and the First Amendment implications of defining these offenses according to the offender's motive or ideology. These issues were discussed in the hearings on the Hate Crimes Act, and have been the subject of scholarly attention elsewhere. See, e.g., Legislating Against Hate and Bias: Outline of Testimony Before the Congress of the United States, House of Representatives Committee on the Judiciary, 106th Cong. (1999) [hereinafter House 1999 Hearings] (statement of Heidi M. Hurd, Professor of Law and Philosophy and Co-director of the Institute for Law and Philosophy at the University of Pennsylvania) (arguing that hate crimes legislation is "il-liberal" because criminal laws should not punish emotional states and bad character traits); FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 80-109, 161-75 (1999) (concluding that hate crime laws do not violate the First Amendment and arguing that the expressive value of punishment justifies the more severe punishment of bias crimes); JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 79-91 (1998) (critiquing culpability of offender, harms caused to victims, impact on third parties, moral education, and other justifications offered for hate crime offenses), 111-29 (concluding that hate crime statutes constitute viewpoint discrimination and are necessarily at odds with the First Amendment); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. REV. 1015, 1039-44, 1081 (1997) (critiquing theoretical foundations of bias crime laws because one person has no proper interest in others' reasons for acting, and bias is an overbroad proxy for proper considerations such as harm to the victim); Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L. J. 507, 509 (1999) (arguing that hate crimes legislation may be warranted under a "fair protection paradigm" that considers the relative vulnerabilities to crime of various victims); Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. REV. 739, 742 (1999) (arguing that hate crimes (1) undermine the victim's psychological and moral need for individualized justice, (2) contribute to a racist culture that increases the risk of physical harm, and (3) rely upon a theory of human worth that is incompatible with our constitutional culture); George C. Thomas III, On Trial: Laws Against Hate Crimes, 36 CRIM. L. BULL. 3 (exploring First Amendment implications as well as justifications for hate crime laws and suggesting that laws might be justified on the basis of the added immorality of crimes where the victim is selected because of his or her weakness).
34. In addition to the adequacy of the constitutional basis for federal jurisdiction, the testimony at the hearings and the published commentary on hate crimes legislation also raise issues of the advisability of defining new bias offenses (as opposed to prosecuting the behavior under existing laws), and the First Amendment implications of defining these offenses according to the offender's motive or ideology. These issues were discussed in the hearings on the Hate Crimes Act, and have been the subject of scholarly attention elsewhere. See, e.g., Legislating Against Hate and Bias: Outline of Testimony Before the Congress of the United States, House of Representatives Committee on the Judiciary, 106th Cong. (1999) [hereinafter House 1999 Hearings] (statement of Heidi M. Hurd, Professor of Law and Philosophy and Co-director of the Institute for Law and Philosophy at the University of Pennsylvania) (arguing that hate crimes legislation is "il-liberal" because criminal laws should not punish emotional states and bad character traits); FREDERICK M. LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 80-109, 161-75 (1999) (concluding that hate crime laws do not violate the First Amendment and arguing that the expressive value of punishment justifies the more severe punishment of bias crimes); JAMES B. JACOBS & KIMBERLY POTTER, HATE CRIMES: CRIMINAL LAW AND IDENTITY POLITICS 79-91 (1998) (critiquing culpability of offender, harms caused to victims, impact on third parties, moral education, and other justifications offered for hate crime offenses), 111-29 (concluding that hate crime statutes constitute viewpoint discrimination and are necessarily at odds with the First Amendment); Anthony M. Dillof, Punishing Bias: An Examination of the Theoretical Foundations of Bias Crime Statutes, 91 Nw. U. L. REV. 1015, 1039-44, 1081 (1997) (critiquing theoretical foundations of bias crime laws because one person has no proper interest in others' reasons for acting, and bias is an overbroad proxy for proper considerations such as harm to the victim); Alon Harel & Gideon Parchomovsky, On Hate and Equality, 109 YALE L. J. 507, 509 (1999) (arguing that hate crimes legislation may be warranted under a "fair protection paradigm" that considers the relative vulnerabilities to crime of various victims); Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crimes Legislation Are Wrong, 40 B.C. L. REV. 739, 742 (1999) (arguing that hate crimes (1) undermine the victim's psychological and moral need for individualized justice, (2) contribute to a racist culture that increases the risk of physical harm, and (3) rely upon a theory of human worth that is incompatible with our constitutional culture); George C. Thomas III, On Trial: Laws Against Hate Crimes, 36 CRIM. L. BULL. 3 (exploring First Amendment implications as well as justifications for hate crime laws and suggesting that laws might be justified on the basis of the added immorality of crimes where the victim is selected because of his or her weakness).
35. For a discussion of the jurisdictional issues, see infra notes 20-21, 24-31 and accompanying text.
36. Frederick Lawrence has considered this issue. See House 1999 Hearings, supra note 5 (statement of Frederick M. Lawrence, Professor of Law, Boston University) [hereinafter Lawrence statement] (concluding that on prudential grounds federal hate crimes are justified by potential for state default and federal interest in equality, and that Kennedy amendment is needed to remedy gaps in 18 U.S.C. § 245; LAWRENCE, supra note 5 at 110-60 (recounting history of federal civil rights enforcement and concluding on prudential grounds that federal hate crimes are justified by potential for state default and federal interest in equality).
37. James A. Strazzella, Task Force on Federalisation of Criminal Law, 1998 A.B.A. CRIM. JUST. SEC. 19.
38. Recognizing the traditional role of federalism, the Supreme Court recently stated: We 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. In recognizing this fact we preserve one of the few principles that has been consistent since the Clause was adopted. 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. Indeed, we can think of no better example of the police power, which the Founders denied the National Government and reposed in the States, than the suppression of violent crime and vindication of its victims. United States v. Morrison, 120 S. Ct. 1740, 1754 (2000) (citations and footnote omitted).
39. For a description of the growth of federal criminal law and its increasing overlap with state law, see Strazzella, supra note 8, at 5-14.
40. Id. at 49 (emphasis omitted).
41. See generally NORMAN ABRAMS & SARA SUN BEALE, FEDERAL CRIMINAL LAW AND ITS ENFORCEMENT 64-71 (3d ed. 2000) (surveying various proposals to define the scope of federal criminal jurisdiction).
42. See, e.g., COMMITTEE ON LONG RANGE PLANNING, JUDICIAL CONFERENCE OF THE UNITED STATES, LONG RANGE PLAN FOR THE FEDERAL COURTS, ch. 4 at 24 (recommendation 2(a)) (1995) (2000) 〈http://www.uscourts.gov/lrp/CVRPGTOC.HTM〉 [hereinafter LONG RANGE PLAN] ("No one seriously disputes that conduct directly injurious to or affecting the federal government or its agents should be subject to the exclusive jurisdiction of the federal investigative, prosecutorial, and judicial branches.");
43. Sara Sun Beale, Reporter's Draft for the Working Group on Principles to Use When Considering the Federalization of Criminal Law, 46 HASTINGS L.J. 1277, 1295-98 (1995) [hereinafter Beale, Reporter's Draft] (reporting discussion and comparison of two proposals for defining areas where comparative advantage of federal prosecution over state prosecution can support federalization);
44. John B. Oakley, The Myth of Cost-Free Jurisdictional Reallocation, 543 ANNALS AM. ACAD. POL. & Soc. Sci. 52, 58-59 (1996) (listing five non-exhaustive categories of criminal activity generally considered suitable for federal prosecution).
45. See LONG RANGE PLAN, supra note 13, at ch. 4 p. 24; Beale, Reporter's Draft, supra note 13, at 1296-97 (Sullivan proposal).
46. See, e.g., LONG RANGE PLAN, supra note 13, at ch. 4 p. 25 (recommendation 2(b)). In other cases the states may lack the resources or expertise to respond to an enterprise that is especially sophisticated, and federal resources and expertise may be necessary to prosecute effectively. See id. at 25 (recommendation 2(c)).
47. See id. at (recommendation 2(d)). This principle may be applied to the criminalization of certain subjects or areas, but it may also be applied to the exercise of federal jurisdiction in individual cases. See infra note 174 and accompanying text.
48. See Theodore Eisenberg, Federal Protection of Civil Rights, 2 ENCYCLOPEDIA OF THE AMERICAN CONSTITUTION 711-15 (Leonard W. Levy et al. eds. 1986) (giving a brief account of the history of federal civil rights legislation and its enforcement). Eisenberg notes that "the original federal civil rights statutes, and their underlying constitutional amendments, were responses to outrages by states or to private outrages that states failed to ameliorate." Id. at 711;
49. see also LONG RANGE PLAN, supra note 13, at ch. 4 p. 25 ("During the height of the civil rights era, there was a manifest need in some parts of the country for the federal government to prosecute acts of violence against civil rights workers when local law enforcement had moved reluctantly against the violators.").
50. See LAWRENCE, supra note 5, at 118-49 (categorizing the various civil rights enactments and recounting circumstances of their enactment). For a description of specific instances where Southern officials supported anti-black violence during the Reconstruction period, see Taslitz, supra note 5, at 776.
51. Cf. LONG RANGE PLAN, supra note 13, at 25 (noting that given the potential explosiveness of some civil rights actions, they may be more effectively handled by the federal government, and that charges of "a systematic use of excessive force by police officers or criminal interference with the exercise of constitutional rights also fall within this category").
52. The findings section of the June 2000 version of the Kennedy proposal recites that: (6) Such violence substantially affects interstate commerce in many ways, including -by impeding the movement of members of targeted groups and forcing such members to move across State lines to escape the incidence or risk of such violence; and (A) by impeding the movement of members of targeted groups and forcing such members to move across State lines to escape the incidence or risk of such violence; and (B) by preventing members of targeted groups from purchasing goods and services, obtaining or sustaining employment or participating in other commercial activity. (7) Perpetrators cross State lines to commit such violence. (8) Channels, facilities, and instrumentalities of interstate commerce are used to facilitate the commission of such violence. (9) Such violence is committed using articles that have traveled in interstate commerce. 146 CONG. REC. S5370-71 §_02 (daily ed. June 19, 2000).
53. The findings also recite that: (10) 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.
54. 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. Id. §_02(10)-(11).
55. Id. §_02(12).
56. Id. §_02(13). This section also states that "[t]he incidence of violence motivated by the actual or perceived race, color, religion, national origin, gender, sexual orientation, or disability of the victim poses a serious national problem," that "[s]uch violence disrupts the tranquility and safety of communities and is deeply divisive," and that "[e]xisting Federal law is inadequate to address this problem." Id. §_02(1), 02(2), 02(4).
57. See id. §_07(a) ("Whoever . . . willfully causes bodily injury to a person or through the use of fire, a firearm, 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 . . . .").
58. See id. (creating 18 U.S.C. § 249(a)(1)).
59. See id. §_02(10)-(11).
60. See 146 CONG. REC. S5371 §_7 (daily ed. June 19, 2000) (creating 18 U.S.C. § 249(a)(2)). Note that religiously-motivated crimes are covered by both clauses. This is apparently the result of some doubt that the Civil Rights Amendments reach religion as well as race, color, and national origin. See, e.g., Combating Hate Crimes: Promoting a Responsive and Responsible Role for the Federal Government: Hearing Before the Senate Committee on the Judiciary, 106th Cong. 49, 50-52 (1999) [hereinafter Senate 1999 Hearings] (statement of Akil Amar) (commenting that it may be difficult to bring religious bigotry under the Thirteenth Amendment); House 1999 Hearings, supra note 5 (statement of John C. Yoo) (noting that Thirteenth Amendment has never been extended to religion); The Hate Crimes Prevention Act of 1997: Hearings on H.R. 3081 Before the House Committee on the Judiciary, 105th Cong. 57, 57 (1998) [hereinafter House 1998 Hearings] (statement of John C. Harrison) (stating the Thirteenth Amendment does not give Congress power to reach private conduct based upon religion or national origin); The Hate Crimes Prevention Act of 1998: Hearing on S.J. Res. 1529 Before the Senate Committee on the Judiciary, 105th Cong. 40, 43 (1998) [hereinafter Senate 1998 Hearings] (statement of Lawrence Alexander) (declaring that the power to enforce the Thirteenth Amendment does not include the power to regulate crimes other than those connected with slavery). But see 146 CONG. REC. S5353-55 (daily ed. June 19, 2000) (letter from Department of Justice finding precedent in Supreme Court's interpretation of various civil rights statutes for application of Thirteenth Amendment to violence based upon victim's religion or national origin).
61. See 146 CONG. REC. S5371 §_7 (daily ed. June 19, 2000) (creating 18 U.S.C. § 249(a)(2)). Note that religiously-motivated crimes are covered by both clauses. This is apparently the result of some doubt that the Civil Rights Amendments reach religion as well as race, color, and national origin. See, e.g., Combating Hate Crimes: Promoting a Responsive and Responsible Role for the Federal Government: Hearing Before the Senate Committee on the Judiciary, 106th Cong. 49, 50-52 (1999) [hereinafter Senate 1999 Hearings] (statement of Akil Amar) (commenting that it may be difficult to bring religious bigotry under the Thirteenth Amendment); House 1999 Hearings, supra note 5 (statement of John C. Yoo) (noting that Thirteenth Amendment has never been extended to religion); The Hate Crimes Prevention Act of 1997: Hearings on H.R. 3081 Before the House Committee on the Judiciary, 105th Cong. 57, 57 (1998) [hereinafter House 1998 Hearings] (statement of John C. Harrison) (stating the Thirteenth Amendment does not give Congress power to reach private conduct based upon religion or national origin); The Hate Crimes Prevention Act of 1998: Hearing on S.J. Res. 1529 Before the Senate Committee on the Judiciary, 105th Cong. 40, 43 (1998) [hereinafter Senate 1998 Hearings] (statement of Lawrence Alexander) (declaring that the power to enforce the Thirteenth Amendment does not include the power to regulate crimes other than those connected with slavery). But see 146 CONG. REC. S5353-55 (daily ed. June 19, 2000) (letter from Department of Justice finding precedent in Supreme Court's interpretation of various civil rights statutes for application of Thirteenth Amendment to violence based upon victim's religion or national origin).
62. See 146 CONG. REC. S5371 §_7 (daily ed. June 19, 2000) (creating 18 U.S.C. § 249(a)(2)). Note that religiously-motivated crimes are covered by both clauses. This is apparently the result of some doubt that the Civil Rights Amendments reach religion as well as race, color, and national origin. See, e.g., Combating Hate Crimes: Promoting a Responsive and Responsible Role for the Federal Government: Hearing Before the Senate Committee on the Judiciary, 106th Cong. 49, 50-52 (1999) [hereinafter Senate 1999 Hearings] (statement of Akil Amar) (commenting that it may be difficult to bring religious bigotry under the Thirteenth Amendment); House 1999 Hearings, supra note 5 (statement of John C. Yoo) (noting that Thirteenth Amendment has never been extended to religion); The Hate Crimes Prevention Act of 1997: Hearings on H.R. 3081 Before the House Committee on the Judiciary, 105th Cong. 57, 57 (1998) [hereinafter House 1998 Hearings] (statement of John C. Harrison) (stating the Thirteenth Amendment does not give Congress power to reach private conduct based upon religion or national origin); The Hate Crimes Prevention Act of 1998: Hearing on S.J. Res. 1529 Before the Senate Committee on the Judiciary, 105th Cong. 40, 43 (1998) [hereinafter Senate 1998 Hearings] (statement of Lawrence Alexander) (declaring that the power to enforce the Thirteenth Amendment does not include the power to regulate crimes other than those connected with slavery). But see 146 CONG. REC. S5353-55 (daily ed. June 19, 2000) (letter from Department of Justice finding precedent in Supreme Court's interpretation of various civil rights statutes for application of Thirteenth Amendment to violence based upon victim's religion or national origin).
63. See 146 CONG. REC. S5371 §_7 (daily ed. June 19, 2000) (creating 18 U.S.C. § 249(a)(2)). Note that religiously-motivated crimes are covered by both clauses. This is apparently the result of some doubt that the Civil Rights Amendments reach religion as well as race, color, and national origin. See, e.g., Combating Hate Crimes: Promoting a Responsive and Responsible Role for the Federal Government: Hearing Before the Senate Committee on the Judiciary, 106th Cong. 49, 50-52 (1999) [hereinafter Senate 1999 Hearings] (statement of Akil Amar) (commenting that it may be difficult to bring religious bigotry under the Thirteenth Amendment); House 1999 Hearings, supra note 5 (statement of John C. Yoo) (noting that Thirteenth Amendment has never been extended to religion); The Hate Crimes Prevention Act of 1997: Hearings on H.R. 3081 Before the House Committee on the Judiciary, 105th Cong. 57, 57 (1998) [hereinafter House 1998 Hearings] (statement of John C. Harrison) (stating the Thirteenth Amendment does not give Congress power to reach private conduct based upon religion or national origin); The Hate Crimes Prevention Act of 1998: Hearing on S.J. Res. 1529 Before the Senate Committee on the Judiciary, 105th Cong. 40, 43 (1998) [hereinafter Senate 1998 Hearings] (statement of Lawrence Alexander) (declaring that the power to enforce the Thirteenth Amendment does not include the power to regulate crimes other than those connected with slavery). But see 146 CONG. REC. S5353-55 (daily ed. June 19, 2000) (letter from Department of Justice finding precedent in Supreme Court's interpretation of various civil rights statutes for application of Thirteenth Amendment to violence based upon victim's religion or national origin).
64. See 146 CONG. REC. S5371 §_7 (daily ed. June 19, 2000) (creating 18 U.S.C. § 249(a)(2)). Note that religiously-motivated crimes are covered by both clauses. This is apparently the result of some doubt that the Civil Rights Amendments reach religion as well as race, color, and national origin. See, e.g., Combating Hate Crimes: Promoting a Responsive and Responsible Role for the Federal Government: Hearing Before the Senate Committee on the Judiciary, 106th Cong. 49, 50-52 (1999) [hereinafter Senate 1999 Hearings] (statement of Akil Amar) (commenting that it may be difficult to bring religious bigotry under the Thirteenth Amendment); House 1999 Hearings, supra note 5 (statement of John C. Yoo) (noting that Thirteenth Amendment has never been extended to religion); The Hate Crimes Prevention Act of 1997: Hearings on H.R. 3081 Before the House Committee on the Judiciary, 105th Cong. 57, 57 (1998) [hereinafter House 1998 Hearings] (statement of John C. Harrison) (stating the Thirteenth Amendment does not give Congress power to reach private conduct based upon religion or national origin); The Hate Crimes Prevention Act of 1998: Hearing on S.J. Res. 1529 Before the Senate Committee on the Judiciary, 105th Cong. 40, 43 (1998) [hereinafter Senate 1998 Hearings] (statement of Lawrence Alexander) (declaring that the power to enforce the Thirteenth Amendment does not include the power to regulate crimes other than those connected with slavery). But see 146 CONG. REC. S5353-55 (daily ed. June 19, 2000) (letter from Department of Justice finding precedent in Supreme Court's interpretation of various civil rights statutes for application of Thirteenth Amendment to violence based upon victim's religion or national origin).
65. The conduct in question would be subject to federal prosecution under this section if the offense occurred "during the course of, or as a result of, the travel of the defendant or the victim" in interstate commerce, or the defendant used a facility of interstate commerce or a weapon that had traveled in interstate commence in connection with the offense, or the defendant interfered "with commercial or other economic activity in which the victim was engaged at the time of the conduct," or the offense itself "otherwise affected interstate commerce." 146 CONG. REC. S5371 (daily ed. June 19, 2000) (creating 18 U.S.C. § 249(a)(2)(B)).
66. See United States v. Morrision, 120 S. Ct. 1740, 1759 (2000) ("Congress's effort in § 13981 [of the Violence Against Women Act] to provide a federal civil remedy can be sustained neither under the Commerce Clause nor under § 5 of the Fourteenth Amendment.").
67. See, e.g., 146 CONG. REC. S5342-43, S5349-52, S5421-22 (daily ed. June 19, 2000) (statement of Sen. Hatch); see id. at S5427-28 (statement of Sen. Warner).
68. See, e.g., 146 CONG. REC. S5343-44 (daily ed. June 19, 2000) (statement of Sen. Durbin); see id. at S5353 (reprinting letter from Department of Justice which concludes that Congress has authority to adopt Kennedy proposal).
69. See 146 CONG. REC. S5370 (daily ed. June 19, 2000) §_04(a)(1). The offense must be a crime of violence, as defined by 18 U.S.C. § 16, a felony under the laws of a state or Indian tribe, and either (1) be "motivated by prejudice based on the victim's race, color, religion, national origin, gender, sexual orientation, or disability" or (2) be "a violation of the hate crime laws of the State or Indian tribe." Note that in this respect the proposal places Indian tribal enforcement on a par with state and local law enforcement.
70. Id. §_04(b). This program also applies to Indian tribes. See id. The proposal authorizes the appropriation of (but does not appropriate) $5 million per year to carry out this program in 2001 and 2002. See id. §_04(b)(6).
71. See id. §_05.
72. See 146 CONG. REC. S5371-72 (daily ed. June 19, 2000) (reporting passage of Amend 3474).
73. In 1998 and 1999. both the House and the Senate held hearings on hate crimes. See Senate 1998 Hearings, supra note 27, at 18-27 (statement of Eric H. Holder, Jr., Deputy Attorney General, U.S. Department of Justice); House 1999 Hearings, supra note 27 (testimony of Eric H. Holder) [hereinafter Holder August 1999 Testimony]; Senate 1998 Hearings, supra note 5. at 35-36 (statement of William C. Sowder, Criminal District Attorney for Lubbock County, Texas); House 1998 Hearings, supra note 27, at 16-23 (statement of Bill Lann Lee, Acting Assistant Attorney General, Dept. of Justice, Civil Rights Division).
74. See Lawrence statement, supra note 7; Senate 1999 Hearings, supra note 27, at 7 (statement of Eric H. Holder, Deputy Attorney General) [hereinafter Holder May 1999 Testimony); Senate 1998 Hearings, supra note 27, at 4-6, 12-19 (testimony of Eric H. Holder, Deputy Attorney General); House 1998 Hearings, supra note 27, at 16-23 (statement of Bill Lann Lee, Acting Assistant Attorney General).
75. See Holder May 1999 Testimony, supra note 37, at 22 (arguing that jurisdictional limitations have "undermined the vindication of the federal interest in fighting hate-based violence").
76. See id.; House 1998 Hearings, supra note 27, at 59-61 (statement of Mark Bangerter) (supporting extension of federal authority to reach hate crimes based upon sexual orientation); see id. at 80-86 (statement of Kathryn J. Rogers, Executive Director NOW Legal Defense and Education Fund) (supporting extension of federal authority to reach gender-motivated violence).
77. See, e.g., Lawrence statement, supra note 7; Holder August 1999 Testimony, supra note 36 (noting that according to a 1997 survey, 45% of those who reported hate crimes based upon sexual orientation "labeled their treatment by police as indifferent to hostile," and describing an incident in which local police declined to investigate as a hate crime the actions of a group of Denver youth who asphyxiated a paraplegic when they stuffed him upside down in a trash can); Holder May 1999 Testimony, supra note 37, at 23-25 ; House 1999 Hearings, supra note 5 (statement of Tony Orr) (describing case in which perpetrators of extremely violent assault motivated by sexual orientation were sentenced to 40 hours of community service); House 1998 Hearings, supra note 27, at 59-61 (statement of Mark Bangerter) (permanently disabled victim of attack motivated by sexual orientation describes how his case was ignored by local authorities); House 1998 Hearings, supra note 27, at 80 (statement of Kathryn J. Rogers) (describing gender motivated hate crimes that are inadequately prosecuted at the state level).
78. See Holder May 1999 Testimony, supra note 37, at 21-23 (describing cases from Indiana, Michigan, and Texas in which the government lost at trial due to the requirement of proof that the victim was attacked for his exercise of a federally protected right); Holder August 1999 Testimony, supra note 36 (describing cases from Michigan and Texas in which government lost at trial due to the requirement of proof that the victim was attacked for his exercise of a federally protected right).
79. See Holder May 1999 Testimony, supra note 37, at 11; Holder August 1999 Testimony, supra note 36; House 1998 Hearings, supra note 27, at 16-23 (statement of Bill Lann Lee).
80. See Holder May 1999 Testimony, supra note 37, at 22 (stating that from 1993 through 1998 the Department of Justice brought only thirty-two federal hate crimes prosecutions, an average of fewer than six per year); Holder August 1999 Testimony, supra note 36; see also Senate 1998 Hearings, supra note 27, at 68-71, 80-88 (1998) (describing each individual prosecution between 1969 and 1998).
81. The certification requirement in 18 U.S.C. § 245(a)(1) provides: No prosecution of any offense described in this section shall be undertaken by the United States except upon the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that in his judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice, which function of certification may not be delegated. 18 U.S.C. § 245(a)(1) (1994). The Kennedy proposal reformulates the certification requirement to provide that one of the designated officials must certify that any case prosecuted under the new sections meets one of the following criteria: there is reasonable cause to believe that the actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability was a "motivating factor" underlying the offense; that the Attorney General or her designee has consulted with state officials and determined that (1) the state does not have jurisdiction or refuses to exercise its jurisdiction, or (2) the state has requested that the federal government assume jurisdiction or does not object to federal jurisdiction, or (3) actions by state or local officials "have or are likely to leave demonstrably unvindicated the Federal interest in eradicating bias-motivated crime." Amend. 3473, §_07 (b), 146 CONG. REC. S5371 (daily ed. June 19, 2000).
82. The certification requirement in 18 U.S.C. § 245(a)(1) provides: No prosecution of any offense described in this section shall be undertaken by the United States except upon the certification in writing of the Attorney General, the Deputy Attorney General, the Associate Attorney General, or any Assistant Attorney General specially designated by the Attorney General that in his judgment a prosecution by the United States is in the public interest and necessary to secure substantial justice, which function of certification may not be delegated. 18 U.S.C. § 245(a)(1) (1994). The Kennedy proposal reformulates the certification requirement to provide that one of the designated officials must certify that any case prosecuted under the new sections meets one of the following criteria: there is reasonable cause to believe that the actual or perceived race, color, national origin, religion, sexual orientation, gender, or disability was a "motivating factor" underlying the offense; that the Attorney General or her designee has consulted with state officials and determined that (1) the state does not have jurisdiction or refuses to exercise its jurisdiction, or (2) the state has requested that the federal government assume jurisdiction or does not object to federal jurisdiction, or (3) actions by state or local officials "have or are likely to leave demonstrably unvindicated the Federal interest in eradicating bias-motivated crime." Amend. 3473, §_07 (b), 146 CONG. REC. S5371 (daily ed. June 19, 2000).
83. Deputy Attorney General Holder testified: The most important benefit of concurrent state and federal criminal jurisdiction is the ability of state and federal law enforcement officials to work together as partners in the investigation and prosecution of serious crimes. When federal jurisdiction does exist in the limited hate crimes contexts authorized by 18 U.S.C. 245, the federal government's resources, forensic expertise, and experience in the identification and proof of hate-based motivations often provide an invaluable investigative complement to the familiarity of local investigators with the local community and its people. It is by working together cooperatively that state and federal law enforcement officials stand the best chance of bringing the perpetrators of hate crimes swiftly to justice. Holder August 1999 Testimony, supra note 36. Mr. Holder made the same statement in earlier testimony before the Senate. See Holder May 1999 Testimony, supra note 37, at 20.
84. See Holder August 1999 Testimony, supra note 36 (describing examples of effective partnership approach, and predicting that "additional state-federal partnerships would result in an increase in the number of arrests and successful prosecutions analogous to that achieved through joint state-federal investigation in the church arson context"). Mr. Holder made the same statement in earlier testimony before the Senate. See Holder May 1999 Testimony, supra note 37, at 20-21.
85. See Holder August 1999 Testimony, supra note 36 (noting that the Church Arson Task Force had worked with state and local officials to investigate 785 fires since 1995, resulting in arrest of 340 defendants, 80% of whom were prosecuted in state courts under state law); Holder May 1999 Testimony, supra note 37, at 20-21 (noting that ATF, FBI, and federal prosecutors "have collaborated with state and local officials in each and every church arson case that has occurred since January 1, 1995," producing arrest rate double the national average for arson, with 80% of prosecutions being brought in state courts).
86. Deputy Attorney General Holder testified: Concurrent federal jurisdiction is needed to authorize the federal government to share its law enforcement resources, forensic expertise, and civil rights experience with state and local officials. And in rare circumstances - where state or local officials are unable or unwilling to bring appropriate criminal charges in state court, or where federal law or procedure is significantly better suited to the vindication of the federal interest - the United States must be able to bring federal civil rights charges. In these special cases, the public is served when, after consultation with state and local authorities, prosecutors have a federal alternative as an option. Holder August 1999 Testimony, supra note 36. Mr. Holder made the same statement in earlier testimony before the Senate. See Holder May 1999 Testimony, supra note 37, at 20. See also the 1998 testimony of the head of the Civil Rights Division, who stated that in recent years the Department had brought fewer than six hate crimes prosecutions per year, and that "[w]e do not anticipate that the enactment of H.R. 3081 would result in any significant increase in these numbers." House 1998 Hearings, supra note 27, at 16 (statement of Bill Lann Lee).
87. See Holder August 1999 Testimony, supra note 36 (noting that "Department-wide policies . . . would impose additional limitations on the cases prosecuted by the federal government," and that certification requirement in the Kennedy proposal "would ensure that the Department's new areas of hate crimes jurisdiction would be asserted in a properly limited fashion"). Mr. Holder made the same statements in his earlier testimony before the Senate. See Holder May 1999 Testimony, supra note 37, at 25; see also Senate 1998 Hearings, supra note 37, at 18-19 (statement of Eric H. Holder).
88. See Holder August Testimony, supra note 36; Holder May Testimony, supra note 37, at 19.
89. See infra text accompanying note 57. 52 FEDERAL BUREAU OF INVESTIGATION, UNIFORM CRIME REPORTS, HATE CRIME STATISTICS, TABLE 3 (1998) (2000) 〈http://www.fbi.gov/ucr.htm〉.
90. Despite the fact that the FBI's statistics are not limited to cases involving the jurisdictional predicates that would limit the new offenses directed at victims because of their gender, sexual orientation, or disability, it is still likely that these figures understate the offenses that would fall within the terms of the new crimes. Authorities believe that the FBI's figures substantially undercount hate crimes, and their figures do not include gender-motivated offenses. See id.
91. See supra text accompanying notes 42-51.
92. The rioting that erupted in Los Angeles following the state verdict in People v. Powell killed at least 45 people, destroyed more than 5,000 buildings, and caused at least $750 million in property damage. See generally Greg Braxton & Jim Newton, Looting and Fires Ravage L.A., L.A. TIMES, May 1, 1992, at Al; Louis Sahagun & Carla Rivera, Jittery L.A. Sees Rays of Hope, L.A. TIMES, May 3, 1992, at A1: Douglas Jehl & Frederick M. Meier, Bush Arrives in L.A., Calls for Healing, L.A. TIMES, May 7, 1992, at A1; see also Symposium, Los Angeles, April 29, 1992 and Beyond: The Law, Issues, and Perspectives, 66 S. CAL. L. REV. 1313 (1993) (symposium of articles and essays relating to the King trial and resulting civil disturbance).
93. The rioting that erupted in Los Angeles following the state verdict in People v. Powell killed at least 45 people, destroyed more than 5,000 buildings, and caused at least $750 million in property damage. See generally Greg Braxton & Jim Newton, Looting and Fires Ravage L.A., L.A. TIMES, May 1, 1992, at Al; Louis Sahagun & Carla Rivera, Jittery L.A. Sees Rays of Hope, L.A. TIMES, May 3, 1992, at A1: Douglas Jehl & Frederick M. Meier, Bush Arrives in L.A., Calls for Healing, L.A. TIMES, May 7, 1992, at A1; see also Symposium, Los Angeles, April 29, 1992 and Beyond: The Law, Issues, and Perspectives, 66 S. CAL. L. REV. 1313 (1993) (symposium of articles and essays relating to the King trial and resulting civil disturbance).
94. The rioting that erupted in Los Angeles following the state verdict in People v. Powell killed at least 45 people, destroyed more than 5,000 buildings, and caused at least $750 million in property damage. See generally Greg Braxton & Jim Newton, Looting and Fires Ravage L.A., L.A. TIMES, May 1, 1992, at Al; Louis Sahagun & Carla Rivera, Jittery L.A. Sees Rays of Hope, L.A. TIMES, May 3, 1992, at A1: Douglas Jehl & Frederick M. Meier, Bush Arrives in L.A., Calls for Healing, L.A. TIMES, May 7, 1992, at A1; see also Symposium, Los Angeles, April 29, 1992 and Beyond: The Law, Issues, and Perspectives, 66 S. CAL. L. REV. 1313 (1993) (symposium of articles and essays relating to the King trial and resulting civil disturbance).
95. At least one witness predicted that the Department would come under significant pressure from bias crime victims and advocacy groups to intervene in many cases to demonstrate the importance of the issues. See House 1999 Hearings, supra note 5 (statement of Kimberly A. Potter). But see id. (statement of Jack McDevitt) (speculating that only a limited number of cases would be referred by state and local authorities, who would want to maintain control of cases because of the potential for publicity).
96. 146 CONG. REC. S5371 (daily ed. June 19, 2000), AMEND. 3473, §_07(b).
97. See 146 CONG. REC. S5342 (daily ed. June 19, 2000) (remarks of Sen. Durbin) (denying that Kennedy proposal gives the federal government control and noting that certification procedure gives states the "first option" that will not be preempted by federal authorities); 146 Cong. Rec. S5346 (daily ed. June 19, 2000) (remarks of Sen. Jeffords) (certification procedure and consultation requirement will "ensure that we are not infringing on the rights of States to prosecute these crimes"); 146 Cong. Rec. S5302 (daily ed. June 16, 2000) (remarks of Sen. Wyden) (pointing out that under the Kennedy proposal the federal government will not be "coming in and saying: We are going to call all the shots, and preempt the local jurisdictions").
98. See 146 CONG. REC. S5342 (daily ed. June 19, 2000) (remarks of Sen. Durbin) (denying that Kennedy proposal gives the federal government control and noting that certification procedure gives states the "first option" that will not be preempted by federal authorities); 146 Cong. Rec. S5346 (daily ed. June 19, 2000) (remarks of Sen. Jeffords) (certification procedure and consultation requirement will "ensure that we are not infringing on the rights of States to prosecute these crimes"); 146 Cong. Rec. S5302 (daily ed. June 16, 2000) (remarks of Sen. Wyden) (pointing out that under the Kennedy proposal the federal government will not be "coming in and saying: We are going to call all the shots, and preempt the local jurisdictions").
99. See 146 CONG. REC. S5342 (daily ed. June 19, 2000) (remarks of Sen. Durbin) (denying that Kennedy proposal gives the federal government control and noting that certification procedure gives states the "first option" that will not be preempted by federal authorities); 146 Cong. Rec. S5346 (daily ed. June 19, 2000) (remarks of Sen. Jeffords) (certification procedure and consultation requirement will "ensure that we are not infringing on the rights of States to prosecute these crimes"); 146 Cong. Rec. S5302 (daily ed. June 16, 2000) (remarks of Sen. Wyden) (pointing out that under the Kennedy proposal the federal government will not be "coming in and saying: We are going to call all the shots, and preempt the local jurisdictions").
100. 146 CONG. REC. S5348 (daily ed. June 19, 2000) (statement of Sen. Kennedy).
101. The proposed statute does not deal explicitly with the question of judicial review of certification decisions. In analogous situations where standards limit federal charging prerogatives the courts have generally declined to review the exercise of prosecutorial discretion. See, e.g., ABRAMS & BEALE, supra note 12, at 676-77 (describing courts' refusal to enforce Petite Policy); see also 2 SARA SUN BEALE, ET AL., GRAND JURY LAW AND PRACTICE (2d ed. 1997) (describing judicial refusal to enforce prosecutorial standards in grand jury context). It should be noted, however, that these authorities generally dealt with voluntarily assumed administrative standards, not legislatively imposed standards.
102. See 146 CONG. REC. S5340 (daily ed. June 19, 2000) (remarks of Sen. Hatch).
103. See generally Daniel C. Richman, Federal Criminal Law, Congressional Delegation, and Enforcement Discretion, 46 UCLA L. REV. 757 (1999) (noting that because United States Attorneys are drawn from each locality and are dependent on local enforcers' information networks they have incentives to be sensitive to local concerns).
104. See generally Dan M. Kahan, Lenity and Federal Common Law Crimes, 1994 SUP. CT. REV. 345.
105. For example, the EEOC initially refused to take seriously the prohibition against discrimination on the basis of sex. The first director of the EEOC stated that the inclusion of sex in the 1964 Civil Rights Act "was a 'fluke' that was 'conceived out of wedlock,'" and he also "stated that he and others at the EEOC believed that men were 'entitled' to female secretaries." GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 252-53 (1991) (quoting Rep. Martha Griffiths, 20 CONG. REC. 13689 (1966)). Eventually, however, the EEOC accepted its statutory mandate, and in 1980 it issued guidelines specifying that "sexual harassment" constitutes a violation of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). The current version of these guidelines is codified at 29 C.F.R. § 1604.11 (1999). The ebb and flow of the Administration's response can also be seen in its position on civil rights defenses such as business necessity. See, e.g., DAVID A. CATHCART, ET AL., THE CIVIL RIGHTS ACT OF 1991 22-23 (1993) (describing Bush Administration support of employers' position on the particularity requirement in business necessity cases).
106. For example, the EEOC initially refused to take seriously the prohibition against discrimination on the basis of sex. The first director of the EEOC stated that the inclusion of sex in the 1964 Civil Rights Act "was a 'fluke' that was 'conceived out of wedlock,'" and he also "stated that he and others at the EEOC believed that men were 'entitled' to female secretaries." GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 252-53 (1991) (quoting Rep. Martha Griffiths, 20 CONG. REC. 13689 (1966)). Eventually, however, the EEOC accepted its statutory mandate, and in 1980 it issued guidelines specifying that "sexual harassment" constitutes a violation of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). The current version of these guidelines is codified at 29 C.F.R. § 1604.11 (1999). The ebb and flow of the Administration's response can also be seen in its position on civil rights defenses such as business necessity. See, e.g., DAVID A. CATHCART, ET AL., THE CIVIL RIGHTS ACT OF 1991 22-23 (1993) (describing Bush Administration support of employers' position on the particularity requirement in business necessity cases).
107. For example, the EEOC initially refused to take seriously the prohibition against discrimination on the basis of sex. The first director of the EEOC stated that the inclusion of sex in the 1964 Civil Rights Act "was a 'fluke' that was 'conceived out of wedlock,'" and he also "stated that he and others at the EEOC believed that men were 'entitled' to female secretaries." GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 252-53 (1991) (quoting Rep. Martha Griffiths, 20 CONG. REC. 13689 (1966)). Eventually, however, the EEOC accepted its statutory mandate, and in 1980 it issued guidelines specifying that "sexual harassment" constitutes a violation of Title VII. See Meritor Savings Bank, FSB v. Vinson, 477 U.S. 57, 65 (1986). The current version of these guidelines is codified at 29 C.F.R. § 1604.11 (1999). The ebb and flow of the Administration's response can also be seen in its position on civil rights defenses such as business necessity. See, e.g., DAVID A. CATHCART, ET AL., THE CIVIL RIGHTS ACT OF 1991 22-23 (1993) (describing Bush Administration support of employers' position on the particularity requirement in business necessity cases).
108. For example, the EEOC initially refused to take seriously the prohibition against discrimination on the basis of sex. The first director of the EEOC
109. See supra note 43 and accompanying text.
110. See supra note 47 and accompanying text.
111. In 1997, the Attorney General announced the formation in each federal district of "a working group consisting of federal, state, and local law enforcement, as well as community leaders and educators, to develop a comprehensive approach to hate crimes." MEMORANDUM FOR ALL UNITED STATES ATTORNEYS, IMPLEMENTATION OF THE HATE CRIME INITIATIVE (2000) 〈http://www.usdoj.gov/ag/readingroom/hatecrimeinit.htm〉; see also MEMORANDUM OF UNDERSTANDING, NATIONAL DISTRICT ATTORNEYS ASSOCIATION AND DEPARTMENT OF JUSTICE, § V(A)(1) (July 2, 1998) [hereinafter MEMO OF UNDERSTANDING] ("[T]he Attorney General of the United States has asked all United States Attorneys to create or expand existing Hate Crime Working Groups in their federal districts to involve local, state, and federal law enforcement, as well as community leaders, in the development of a comprehensive approach to hate crimes.").
112. In 1997, the Attorney General announced the formation in each federal district of "a working group consisting of federal, state, and local law enforcement, as well as community leaders and educators, to develop a comprehensive approach to hate crimes." MEMORANDUM FOR ALL UNITED STATES ATTORNEYS, IMPLEMENTATION OF THE HATE CRIME INITIATIVE (2000) 〈http://www.usdoj.gov/ag/readingroom/hatecrimeinit.htm〉; see also MEMORANDUM OF UNDERSTANDING, NATIONAL DISTRICT ATTORNEYS ASSOCIATION AND DEPARTMENT OF JUSTICE, § V(A)(1) (July 2, 1998) [hereinafter MEMO OF UNDERSTANDING] ("[T]he Attorney General of the United States has asked all United States Attorneys to create or expand existing Hate Crime Working Groups in their federal districts to involve local, state, and federal law enforcement, as well as community leaders, in the development of a comprehensive approach to hate crimes.").
113. MEMO OF UNDERSTANDING, supra note 67. A draft of the agreement that is substantially the same as the final agreement was published. Draft Memorandum of Understanding Between the National Association of District Attorneys and the Department of Justice, 32 PROSECUTOR 28 (Oct. 1998).
114. MEMO OF UNDERSTANDING, supra note 67, § IV-V(C). The Memorandum of Understanding provides a lengthy definition of the term "coordination-sensitive incidents" that "includes" several different kinds of incidents, including (1) cases of serious damage to person or property were there are substantial differences between state and federal law, (2) cases presenting an important policy consideration, such as the involvement of organized militia or racial supremacists, (3) incidents that may provoke instability in the community, and (4) cases requiring investigative or prosecutorial resources that exceed those available to state and local authorities. Id. § IV-V(C).
115. See id. § V(C)(2)-(3).
116. If state or local authorities decline to prosecute, the state "does not intend to exercise jurisdiction;" if they bring less serious charges or accept a plea to lesser charges the "verdict or sentence" could be said to leave the federal interest demonstrably unvindicated. See supra text accompanying note 57.
117. See 146 CONG. REC. S5340 (daily ed. June 19, 2000) (remarks of Sen. Hatch).
118. Cf. JIM MCGEE & BRIAN DUFFY, MAIN JUSTICE: THE MEN AND WOMEN WHO ENFORCE THE NATION'S CRIMINAL LAWS AND GUARD ITS LIBERTIES 56 (1996) (under J. Edgar Hoover promotions and raises in the FBI were driven by the number of indictments, arrests, and convictions).
119. See MURRAY EDELMAN, THE SYMBOLIC USES OF POLITICS (1964) [hereinafter EDELMAN, SYMBOLIC USES];
120. see also MURRAY EDELMAN, POLITICS AS SYMBOLIC ACTION: MASS AROUSAL AND QUIESCENCE (1971) [hereinafter EDELMAN, SYMBOLIC ACTION].
121. See EDELMAN, SYMBOLIC USES, supra note 74, at 2-13, 26-42 (discussing political activity that produces tangible benefits).
122. See id. at 2, 12, 22-27, 36-37 (discussing political activity that conveys only symbolic reassurances).
123. See id. at 6. The term "symbolic politics" also takes on a broader connotation in some of the later political science literature, where symbolic politics are contrasted with the politics of self-interest. This literature explores the degree to which political behavior is explained by symbolic attitudes as opposed to short-term material self-interest, and finds (contrary to what economists might predict) that symbolic attitudes appear to have a major effect on issue voting. See, e.g., David O. Sears, et al., Self-Interest vs. Symbolic Politics in Policy Attitudes and Presidential Voting, 74 AM. POL. SCI. REV. 670 (1980). For an effort to explain how symbolic attitudes and self interest might, in the long term, be related, see Dennis Chong, Values Versus Interests in the Explanation of Social Conflict, 144 U. PA. L. REV. 2079 (1996).
124. For example, some scholars have charged that many health, safety, and regulatory statutes are more symbolic than functional. See, e.g., John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 236-50 (1990) (reviewing the political origins of section 112 of the Clean Air Act, 42 U.S.C. § 7412 (1982), which deals with hazardous air pollutants).
125. See EDELMAN, SYMBOLIC ACTION, supra note 74, at 4-10 (explaining that governmental acts can provide clues to the public concerning its future status and security).
126. See generally DANIEL A. FARBER & PHILIP P. FRICKEY, LAW AND PUBLIC CHOICE: A CRITICAL INTRODUCTION 12-37 (1991) (discussing the political impact of interest groups as viewed from the perspective of political science and economics).
127. See, e.g., William M. Landes & Richard A. Posner, The Independent Judiciary in an Interest-Group Perspective, 18 J.L. & ECON. 875, 877 (1975) (concluding that "legislation is 'sold' by the legislature and 'bought' by the beneficiaries of the legislation").
128. See FARBER & FRICKEY, supra note 80, at 23 (citing the work of Mancur Olson to support the theory that small groups can organize more successfully to obtain circumscribed benefits from the government than can large groups which want a broader array of government benefits).
129. See, e.g., ANTHONY KING, RUNNING SCARED: WHY AMERICA'S POLITICIANS CAMPAIGN TOO MUCH AND GOVERN TOO LITTLE 138-41 (1997); Brian T. Fitzpatrick, Congressional Re-election Through Symbolic Politics: The Enhanced Banking Crime Penalties, 32 AM. CRIM. L. REV. 1, 29 (1994) ("Merely passing a law can make an anxious public feel better."); Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 67, 67 (1997) ("Since crime cannot be significantly reduced through legislation, politicians must rely on symbolic policies to convey the message that they are doing something to solve the problem.").
130. See, e.g., ANTHONY KING, RUNNING SCARED: WHY AMERICA'S POLITICIANS CAMPAIGN TOO MUCH AND GOVERN TOO LITTLE 138-41 (1997); Brian T. Fitzpatrick, Congressional Re-election Through Symbolic Politics: The Enhanced Banking Crime Penalties, 32 AM. CRIM. L. REV. 1, 29 (1994) ("Merely passing a law can make an anxious public feel better."); Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 67, 67 (1997) ("Since crime cannot be significantly reduced through legislation, politicians must rely on symbolic policies to convey the message that they are doing something to solve the problem.").
131. See, e.g., ANTHONY KING, RUNNING SCARED: WHY AMERICA'S POLITICIANS CAMPAIGN TOO MUCH AND GOVERN TOO LITTLE 138-41 (1997); Brian T. Fitzpatrick, Congressional Re-election Through Symbolic Politics: The Enhanced Banking Crime Penalties, 32 AM. CRIM. L. REV. 1, 29 (1994) ("Merely passing a law can make an anxious public feel better."); Nancy E. Marion, Symbolic Policies in Clinton's Crime Control Agenda, 1 BUFF. CRIM. L. REV. 67, 67 (1997) ("Since crime cannot be significantly reduced through legislation, politicians must rely on symbolic policies to convey the message that they are doing something to solve the problem.").
132. See KING, supra note 83, at 43-46.
133. See id. at 153-54 (referencing Congressional enactment of the Brady Handgun Violence Prevention Act in 1993).
134. Id. at 154 (listing the years in which Congress passed major crime legislation from 1981 through 1994).
135. See id. at 140-42 (The majority of these bills created mandatory minimum sentences, especially for drug-related and violent crimes. King feels that such legislation "led to manifest injustices" and "may actually have increased [crime]."). Id.
136. Compare, for example, the federal "war on drugs" and the federal emphasis on prosecuting violent crime involving firearms, both of which involve the commitment of federal funds and personnel, and a significant increase in the number of federal prosecutions. From 1989 to 1998, the number of firearms cases filed in federal district courts increased 61%; in contrast, criminal filings as a whole increased by only 25%. See Patrick Walker & Pragati Patrick, Trends in Firearms Cases From Fiscal Year 1989 Through 1998, and the Workload Implications for the U.S. District Courts (2000) 〈http://www.uscourts.gov/firearms/firearms00.html〉. Between fiscal 1997 and 1998, the federal criminal caseload increased by 14.8%, while the number of drug prosecutions increased by 19.2% and the number of weapons prosecutions increased by 14.4%. See ABRAMS & BEALE, supra note 12, at 16-17 (reprinting case statistics from 1994 to 1998). Drug cases now account form more than 40% of the federal docket. See id. at 14. There were 16,231 federal drug prosecutions in 1998, compared to seventy-seven civil rights prosecutions. See id. at 17-18. There was no clear trend in the number of civil rights prosecutions between 1994 and 1998. The number of prosecutions rose from 1994 until 1996, fell precipitously in 1997, and rose in 1998. See id. at 18.
137. EDELMAN, SYMBOLIC USES, supra note 74, at 37 ("[L]aws as symbols must stand because they satisfy . . . interests that politicians fear will be expressed actively if a large number of voters are led to believe that their shield against a threat has been removed.").
138. Distinctions can, of course, be drawn among the groups identified by the Kennedy proposal. Gender-motivated violence is directed principally against women, who make up more than half of the population and thus have the potential to wield more political power than other groups such as gays, lesbians, the disabled, or racial and religious minorities.
139. On the other hand, it is not clear that the groups supporting hate crimes legislation meet two other criteria that Edelman mentions, i.e., acting on stereotypes and responding strongly to symbols connoting threats.
140. Cf. House 1999 Hearings, supra note 5 (statement of John S. Baker, Jr.) (characterizing the House bill paralleling the Kennedy proposal as "yet another example of 'feel good' criminal law that does not accomplish what is hoped for and may bring about unfortunate and unintended results," explaining that including bias as an element of a crime will make convicting the criminal more difficult).
141. See JOEL BEST, RANDOM VIOLENCE: HOW WE TALK ABOUT NEW CRIMES AND NEW VICTIMS 57-58 (1999) (noting that the term "hate crime" came to "establish a common cause among . . . well established groups dedicated to protecting the interests of African Americans . . . other racial minorities . . . and Jews." Gay and lesbian organizations fought to join this coalition and establish the "analogy between homosexuals and racial and religious minorities . . . [because] not everyone accepted the claim that homosexuals were simply another minority deserving equal protection.").
142. It is possible that some or all of the interest groups in question might have reservations regarding a broader federal crime. In the case of the Violence Against Women Act (VAWA), the criminal provisions are drawn far more narrowly than the civil provisions, and this reflected the preferences of the groups supporting the VAWA. See Interview with Sally Goldfarb, in Durham, N.C. (Apr. 5, 2000). The supporters of the VAWA felt that local prosecutors had more experience with domestic violence, and supporters were reluctant to give broad authority to less experienced federal prosecutors, given the history of using sexual assault laws in a discriminatory fashion, particularly against African-American defendants. See id. The coalition lobbying for VAWA did not oppose the narrowly drawn criminal provision, but they were principally concerned with the civil provisions of the Act. See id. Although the VAWA demonstrates that victim-oriented interest groups do not inevitably favor broader federal criminal liability, it is unclear whether any similar motives might be found for the supporters of the Hate Crimes Prevention Act.
143. Se generally, e.g., MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION 1968-78 (1980); NANCY E. MARION, A HISTORY OF FEDERAL CRIME CONTROL INITIATIVES, 1960- 1993 at 240-41 (1994); Robert S. Diegelman, Federal Financial Assistance for Crime Control: Lessons of the LEAA Experience, 73 J. CRIM. L. & CRIMINOLOGY 994, 996-1001 (1982). LEAA has been described as "a 'beleaguered, frustrated, and failed national effort - the kind of effort costly not only in terms of taxpayers' money and legislator's time but also to our sense of confidence in the ability of the national government to work, to solve problems, to govern.'" MARION, op cit., at 240, (quoting THOMAS E. CRONIN, ET AL., U.S. v. CRIME IN THE STREETS ix (1981)).
144. Se generally, e.g., MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION 1968-78 (1980); NANCY E. MARION, A HISTORY OF FEDERAL CRIME CONTROL INITIATIVES, 1960-1993 at 240-41 (1994); Robert S. Diegelman, Federal Financial Assistance for Crime Control: Lessons of the LEAA Experience, 73 J. CRIM. L. & CRIMINOLOGY 994, 996-1001 (1982). LEAA has been described as "a 'beleaguered, frustrated, and failed national effort - the kind of effort costly not only in terms of taxpayers' money and legislator's time but also to our sense of confidence in the ability of the national government to work, to solve problems, to govern.'" MARION, op cit., at 240, (quoting THOMAS E. CRONIN, ET AL., U.S. v. CRIME IN THE STREETS ix (1981)).
145. Se generally, e.g., MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION 1968-78 (1980); NANCY E. MARION, A HISTORY OF FEDERAL CRIME CONTROL INITIATIVES, 1960- 1993 at 240-41 (1994); Robert S. Diegelman, Federal Financial Assistance for Crime Control: Lessons of the LEAA Experience, 73 J. CRIM. L. & CRIMINOLOGY 994, 996-1001 (1982). LEAA has been described as "a 'beleaguered, frustrated, and failed national effort - the kind of effort costly not only in terms of taxpayers' money and legislator's time but also to our sense of confidence in the ability of the national government to work, to solve problems, to govern.'" MARION, op cit., at 240, (quoting THOMAS E. CRONIN, ET AL., U.S. v. CRIME IN THE STREETS ix (1981)).
146. Se generally, e.g., MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION 1968-78 (1980); NANCY E. MARION, A HISTORY OF FEDERAL CRIME CONTROL INITIATIVES, 1960- 1993 at 240-41 (1994); Robert S. Diegelman, Federal Financial Assistance for Crime Control: Lessons of the LEAA Experience, 73 J. CRIM. L. & CRIMINOLOGY 994, 996-1001 (1982). LEAA has been described as "a 'beleaguered, frustrated, and failed national effort - the kind of effort costly not only in terms of taxpayers' money and legislator's time but also to our sense of confidence in the ability of the national government to work, to solve problems, to govern.'" MARION, op cit., at 240, (quoting THOMAS E. CRONIN, ET AL., U.S. v. CRIME IN THE STREETS ix (1981)).
147. See, e.g., U.S. GENERAL ACCOUNTING OFFICE, REPORT TO THE CHAIRMAN, COMM. ON THE BUDGET, AND THE CHAIRMAN, SUBCOMMITTEE ON CRIME, COMM. ON THE JUDICIARY, HOUSE OF REPRESENTATIVES, COMMUNITY POLICING: ISSUES RELATED TO THE DESIGN, OPERATION, AND MANAGEMENT OF THE GRANT PROGRAM 2-4 (1997) (midway through 6-year authorization of COPS program, 30,155 of the 100,000 officers were on the streets; COPS grants were not targeted on the basis of the greatest need for assistance; grant monitoring was limited; small communities were awarded most of the COPS, though larger cities received larger awards); see also Statement of Richard M. Stana, Assoc. Director of General Accounting Office, COMMUNITY POLICING: Observations on the COPS Program Midway Through Program Implementation, Testimony before the Subcommittee on Crime, Comm. On the Judiciary, House of Representatives (Oct. 28, 1999).
148. The Chief Justice and judicial groups originally opposed the VAWA, but they dropped their opposition once the provision was redrafted to reduce the burden on the federal courts. See Sally Goldfarb, Address at Duke University Law School, Durham, N.C., (Apr. 5, 2000).
149. Edelman recognizes that political action may be "a 'mix' of symbolic effect and rational reflection of interest in resources," EDELMAN SYMBOLIC USES, supra note 74, at 41, but in so doing still assumes an opposition between these two concepts.
150. Cf. Chong, supra note 77, at 2080, 2132 (seeking to chart a middle course between rational choice and socio-psychological explanations of politics).
151. Senate 1999 Hearings, supra note 27, at 29 (statement of Judy Shepard) (arguing that a federal hate crimes prevention act will send the "message that this country does not tolerate hate motivated violence" and make a "powerful statement . . . of a more tolerant America"); id. at 32-34 (statement of Jeanine Ferris Pirro, Westchester District Attorney) (arguing that hate crime laws will send a "message that our society is founded on freedom and tolerance, not on violence and divisiveness"); id. at 50 (statement of Akhil Reed Amar) (describing Kennedy proposal as "a noble effort to affirm the national government's commitment to equality and to express its emphatic disapproval of those who harm others simply because of who the victims are - because, that is, of the victims' race, religion, sex, orientation, or disability"); House 1998 Hearings, supra note 27, at 54 (statement of Cass Sunstein) (arguing that the Kennedy proposal would serve "'expressive' or symbolic functions, assuring people that they are worthy of equal concern and respect, and that Congress itself intends to ensure that they are not subject to the risk of criminal violence because of certain characteristics").
152. 146 CONG. REC. S5281, S5302 (daily ed. June 16, 2000) (statement of Sen. Wyden) ("It is time . . . to send a strong and unequivocal message that we will not look the other way in the face of these crimes, that they will not be tolerated, that the full force of Federal law enforcement will be brought, and will be brought in conjunction with State and local authorities, to ensure that these violent acts are prosecuted and we have taken every step to deter them."); id. at S5303 (statement of Sen. Lieberman) ("[T]his is another way for our society to express our disdain, to put it mildly, at acts of violence committed based on a person's race, religion, nationality, gender, disability, or sexual orientation."); id. at S5313, S5334 (daily ed. June 19, 2000) (statement of Sen. Levin) ("The Senate . . . [can] send a clear message that America is an all-inclusive nation - one that does not tolerate acts of violence based on bigotry and discrimination."); id. at S5335 (statement of Sen. Levin) ("[T]his amendment will send the message that we are a country that treasures equality and tolerance" and that "[w]e will not condone the hate crimes that have plagued our nation"); id. at S5345 (statement of Sen. Breaux) ("This legislation . . . will send a clear message throughout this country that these types of activities in this country will not be tolerated . . . [and] that domestic terrorism and violence against people in our country based merely on who they are or what they believe is something that deserves national protection, and Federal legislation is, in fact, important."); id. at S5346 (statement of Sen. Reed) (the proposed legislation is the best way "to reaffirm our commitment to the most basic of American values: the dignity of the individual and the right of that individual to be himself or herself"); id. at S5383, S5424-25 (daily ed. June 20, 2000) (statement of Sen. Kennedy) (Congress should "take a clear and unequivocal stand," an "overwhelming statement of law" that "we are committed to equal protection under law"); id. at S5432 (statement of Sen. Feinstein) ("The Kennedy hate crimes amendment would send the right message: that those who commit violent acts because the victim is of a certain gender, religion, race, sexual orientation, or disability will be prosecuted because everyone - I repeat - everyone has a right to be free from violence and fear when they are going to school, work, travel, or doing something as simple as going to a movie."); id. at S5433 (statement of Sen. Rockefeller) ("[I]t is vital to make a clear statement against all violent hate crimes against individuals because of race, color, religion, national origin, gender, sexual orientation, or disability.").
153. See 146 CONG. REC. S5281, S5303 (daily ed. June 16, 2000) (statement of Sen. Lieberman); id. at S5334 (statement of Sen. Levin); id. at S5335 (statement of Sen. Levin); id. at S5345 (statement of Sen. Breaux); id. at 5432 (statement of Sen. Feinstein); id. at S5433 (statement of Sen. Rockefeller).
154. See, e.g., FREDERICK LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 167-69 (1990) (punishing hate crimes reflects the high value society places on equality); Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 465 (1999) ("[H]ate crime laws 'send the message' that . . . [it is] wrong to see the victim as lower in worth." They reassure group members "that they are full members of society . . . [and] affirm the larger community's commitment to . . . equality."); House 1998 Hearings, supra note 27 (prepared statement of Cass Sunstein) (arguing that the Kennedy proposal would serve "'expressive' or symbolic functions, assuring people that they are worthy of equal concern and respect, and that Congress itself intends to ensure that they are not subject to the risk of criminal violence because of certain characteristics").
155. See, e.g., FREDERICK LAWRENCE, PUNISHING HATE: BIAS CRIMES UNDER AMERICAN LAW 167-69 (1990) (punishing hate crimes reflects the high value society places on equality); Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413, 465 (1999) ("[H]ate crime laws 'send the message' that . . . [it is] wrong to see the victim as lower in worth." They reassure group members "that they are full members of society . . . [and] affirm the larger community's commitment to . . . equality."); House 1998 Hearings, supra note 27 (prepared statement of Cass Sunstein) (arguing that the Kennedy proposal would serve "'expressive' or symbolic functions, assuring people that they are worthy of equal concern and respect, and that Congress itself intends to ensure that they are not subject to the risk of criminal violence because of certain characteristics").
156. See, e.g., JOEL FEINBERG, DOING AND DESERVING: ESSAYS IN THE THEORY OF RESPONSIBILITY 98-118 (1970) ("[P]unishment surely expresses the community's strong disapproval of what the criminal did . . . . [I]t is also a symbolic way of getting back at the criminal, of expressing a kind of vindictive resentment.");
157. NIGEL WALKER, PUNISHMENT, DANGER AND STIGMA: THE MORALITY OF CRIMINAL JUSTICE 28-30 (1980) (explaining that punishment of the offender is necessary to express society's view that it does not tolerate the offense). In contrast, other scholarship has taken either a retributive or utilitarian approach, with the latter focusing on deterrence or incapacitation as the principal function of criminal law. For retributive accounts,
158. see, for example IMMANUEL KANT, METAPHYSICAL ELEMENTS OF JUSTICE 137-44 (John Ladd trans., 2d ed. 1999) (1798) (discussing how the law of retribution determines a specific punishment);
159. Michael S. Moore, The Moral Worth of Retribution, in RESPONSIBILITY, CHARACTER, AND THE EMOTIONS 179, 181-87 (Ferdinand Schoeman ed. 1987);
160. Herbert Morris, Persons and Punishment, 52 THE MONIST 475-76, 483-90 (1968) (discussing the appropriateness of punishing violators of the rules because such violations produce "a maldistribution in the benefits and burdens" within society);
161. Jeffrie G. Murphy, Three Mistakes About Retributivism, 31 ANALYSIS 166, 166-69 (1971) (demonstrating that the "[r]etributive theory of punishment is not silly"). For a utilitarian account focusing on deterrence or incapacitation,
162. see for example Johannes Andenaes, The General Preventive Effects of Punishment, 114 U. PA. L. REV. 949, 949-83 (1966) (discussing deterrence from theoretical, practical, and experimental perspectives).
163. See EMILE DURKHEIM, THE DIVISION OF LABOR IN SOCIETY 62-63 (W.D. Hall trans., 1984).
164. Two assumptions that are subject to dispute underlie the theoretical work dealing with the law's function in creating social meaning and norms, and in shifting social capital. One of these assumptions is that the public is aware of the law and changes in the law. There is, however, empirical work suggesting that even major legal changes are not well known. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 35-52 (1997) (surveying research showing generally low levels of public knowledge of criminal laws, sentencing laws, and constitutional rights); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 126 (1991) (describing research on the low level of public awareness of the Supreme Court and its decisions). For example, 90% of Ohio residents were unaware of the passage of a major state initiative to increase drug penalties, and Colorado residents were similarly unaware of legislation doubling the presumptive range of sentences under state law. See ROBERTS & STALANS, supra at 39; cf. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896 (1978) (finding that public approval ratings for a state supreme court did not vary from those for the executive and the legislature during a period when the court and the legislature were at odds in a prominent dispute over sources of funding for public schools; even in this situation, many members of the public apparently did not distinguish among positions taken by different branches of government). Note, however, that legislative activity has greater visibility than judicial activity, at least at the federal level. See Charles H. Franklin & Liane C. Kosaki, Media, Knowledge, and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 356-57 (1995) (Lee Epstein, ed.) (finding four times as many national news stories about Congress than about the Supreme Court). Even if law is known, that does not necessarily mean that it is responsible for shaping important perceptions or changing behavior. Social scientists and legal scholars are exploring the degree to which law can be shown to have such effects, and how its impact compares to that of other forces, such as economic forces. There is, for example, currently a lively dispute about the question whether certain features of the United States legal regime that protect minority shareholders are essential to the development of dispersed corporate ownership, which in turn provides resources for economic growth. Compare John H. Coffee, The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 641, 704-05 (1999) (arguing in favor of the importance of the legal regime), with Frank H. Easterbrook, International Corporate Differences: Markets or Law? 9 J. APPLIED CORP. FIN. #4, at 23-29 (1997) (arguing that markets, rather than law, are determinative), and Brian R. Cheffins, Does Law Matter?: The Separation of Ownership and Control in the United Kingdom, ESRC Center for Business Research Working Paper No. 172, at 52-57 (2000) (finding that development of dispersed corporate ownership in England did not correspond to the adoption of legal protections for minority shareholders and that during the critical periods, other institutions provided minority shareholders with protections).
165. Two assumptions that are subject to dispute underlie the theoretical work dealing with the law's function in creating social meaning and norms, and in shifting social capital. One of these assumptions is that the public is aware of the law and changes in the law. There is, however, empirical work suggesting that even major legal changes are not well known. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 35-52 (1997) (surveying research showing generally low levels of public knowledge of criminal laws, sentencing laws, and constitutional rights); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 126 (1991) (describing research on the low level of public awareness of the Supreme Court and its decisions). For example, 90% of Ohio residents were unaware of the passage of a major state initiative to increase drug penalties, and Colorado residents were similarly unaware of legislation doubling the presumptive range of sentences under state law. See ROBERTS & STALANS, supra at 39; cf. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896 (1978) (finding that public approval ratings for a state supreme court did not vary from those for the executive and the legislature during a period when the court and the legislature were at odds in a prominent dispute over sources of funding for public schools; even in this situation, many members of the public apparently did not distinguish among positions taken by different branches of government). Note, however, that legislative activity has greater visibility than judicial activity, at least at the federal level. See Charles H. Franklin & Liane C. Kosaki, Media, Knowledge, and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 356-57 (1995) (Lee Epstein, ed.) (finding four times as many national news stories about Congress than about the Supreme Court). Even if law is known, that does not necessarily mean that it is responsible for shaping important perceptions or changing behavior. Social scientists and legal scholars are exploring the degree to which law can be shown to have such effects, and how its impact compares to that of other forces, such as economic forces. There is, for example, currently a lively dispute about the question whether certain features of the United States legal regime that protect minority shareholders are essential to the development of dispersed corporate ownership, which in turn provides resources for economic growth. Compare John H. Coffee, The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 641, 704-05 (1999) (arguing in favor of the importance of the legal regime), with Frank H. Easterbrook, International Corporate Differences: Markets or Law? 9 J. APPLIED CORP. FIN. #4, at 23-29 (1997) (arguing that markets, rather than law, are determinative), and Brian R. Cheffins, Does Law Matter?: The Separation of Ownership and Control in the United Kingdom, ESRC Center for Business Research Working Paper No. 172, at 52-57 (2000) (finding that development of dispersed corporate ownership in England did not correspond to the adoption of legal protections for minority shareholders and that during the critical periods, other institutions provided minority shareholders with protections).
166. Two assumptions that are subject to dispute underlie the theoretical work dealing with the law's function in creating social meaning and norms, and in shifting social capital. One of these assumptions is that the public is aware of the law and changes in the law. There is, however, empirical work suggesting that even major legal changes are not well known. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 35-52 (1997) (surveying research showing generally low levels of public knowledge of criminal laws, sentencing laws, and constitutional rights); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 126 (1991) (describing research on the low level of public awareness of the Supreme Court and its decisions). For example, 90% of Ohio residents were unaware of the passage of a major state initiative to increase drug penalties, and Colorado residents were similarly unaware of legislation doubling the presumptive range of sentences under state law. See ROBERTS & STALANS, supra at 39; cf. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896 (1978) (finding that public approval ratings for a state supreme court did not vary from those for the executive and the legislature during a period when the court and the legislature were at odds in a prominent dispute over sources of funding for public schools; even in this situation, many members of the public apparently did not distinguish among positions taken by different branches of government). Note, however, that legislative activity has greater visibility than judicial activity, at least at the federal level. See Charles H. Franklin & Liane C. Kosaki, Media, Knowledge, and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 356-57 (1995) (Lee Epstein, ed.) (finding four times as many national news stories about Congress than about the Supreme Court). Even if law is known, that does not necessarily mean that it is responsible for shaping important perceptions or changing behavior. Social scientists and legal scholars are exploring the degree to which law can be shown to have such effects, and how its impact compares to that of other forces, such as economic forces. There is, for example, currently a lively dispute about the question whether certain features of the United States legal regime that protect minority shareholders are essential to the development of dispersed corporate ownership, which in turn provides resources for economic growth. Compare John H. Coffee, The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 641, 704-05 (1999) (arguing in favor of the importance of the legal regime), with Frank H. Easterbrook, International Corporate Differences: Markets or Law? 9 J. APPLIED CORP. FIN. #4, at 23-29 (1997) (arguing that markets, rather than law, are determinative), and Brian R. Cheffins, Does Law Matter?: The Separation of Ownership and Control in the United Kingdom, ESRC Center for Business Research Working Paper No. 172, at 52-57 (2000) (finding that development of dispersed corporate ownership in England did not correspond to the adoption of legal protections for minority shareholders and that during the critical periods, other institutions provided minority shareholders with protections).
167. Two assumptions that are subject to dispute underlie the theoretical work dealing with the law's function in creating social meaning and norms, and in shifting social capital. One of these assumptions is that the public is aware of the law and changes in the law. There is, however, empirical work suggesting that even major legal changes are not well known. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 35-52 (1997) (surveying research showing generally low levels of public knowledge of criminal laws, sentencing laws, and constitutional rights); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 126 (1991) (describing research on the low level of public awareness of the Supreme Court and its decisions). For example, 90% of Ohio residents were unaware of the passage of a major state initiative to increase drug penalties, and Colorado residents were similarly unaware of legislation doubling the presumptive range of sentences under state law. See ROBERTS & STALANS, supra at 39; cf. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896 (1978) (finding that public approval ratings for a state supreme court did not vary from those for the executive and the legislature during a period when the court and the legislature were at odds in a prominent dispute over sources of funding for public schools; even in this situation, many members of the public apparently did not distinguish among positions taken by different branches of government). Note, however, that legislative activity has greater visibility than judicial activity, at least at the federal level. See Charles H. Franklin & Liane C. Kosaki, Media, Knowledge, and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 356-57 (1995) (Lee Epstein, ed.) (finding four times as many national news stories about Congress than about the Supreme Court). Even if law is known, that does not necessarily mean that it is responsible for shaping important perceptions or changing behavior. Social scientists and legal scholars are exploring the degree to which law can be shown to have such effects, and how its impact compares to that of other forces, such as economic forces. There is, for example, currently a lively dispute about the question whether certain features of the United States legal regime that protect minority shareholders are essential to the development of dispersed corporate ownership, which in turn provides resources for economic growth. Compare John H. Coffee, The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 641, 704-05 (1999) (arguing in favor of the importance of the legal regime), with Frank H. Easterbrook, International Corporate Differences: Markets or Law? 9 J. APPLIED CORP. FIN. #4, at 23-29 (1997) (arguing that markets, rather than law, are determinative), and Brian R. Cheffins, Does Law Matter?: The Separation of Ownership and Control in the United Kingdom, ESRC Center for Business Research Working Paper No. 172, at 52-57 (2000) (finding that development of dispersed corporate ownership in England did not correspond to the adoption of legal protections for minority shareholders and that during the critical periods, other institutions provided minority shareholders with protections).
168. Two assumptions that are subject to dispute underlie the theoretical work dealing with the law's function in creating social meaning and norms, and in shifting social capital. One of these assumptions is that the public is aware of the law and changes in the law. There is, however, empirical work suggesting that even major legal changes are not well known. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 35-52 (1997) (surveying research showing generally low levels of public knowledge of criminal laws, sentencing laws, and constitutional rights); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 126 (1991) (describing research on the low level of public awareness of the Supreme Court and its decisions). For example, 90% of Ohio residents were unaware of the passage of a major state initiative to increase drug penalties, and Colorado residents were similarly unaware of legislation doubling the presumptive range of sentences under state law. See ROBERTS & STALANS, supra at 39; cf. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896 (1978) (finding that public approval ratings for a state supreme court did not vary from those for the executive and the legislature during a period when the court and the legislature were at odds in a prominent dispute over sources of funding for public schools; even in this situation, many members of the public apparently did not distinguish among positions taken by different branches of government). Note, however, that legislative activity has greater visibility than judicial activity, at least at the federal level. See Charles H. Franklin & Liane C. Kosaki, Media, Knowledge, and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 356-57 (1995) (Lee Epstein, ed.) (finding four times as many national news stories about Congress than about the Supreme Court). Even if law is known, that does not necessarily mean that it is responsible for shaping important perceptions or changing behavior. Social scientists and legal scholars are exploring the degree to which law can be shown to have such effects, and how its impact compares to that of other forces, such as economic forces. There is, for example, currently a lively dispute about the question whether certain features of the United States legal regime that protect minority shareholders are essential to the development of dispersed corporate ownership, which in turn provides resources for economic growth. Compare John H. Coffee, The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 641, 704-05 (1999) (arguing in favor of the importance of the legal regime), with Frank H. Easterbrook, International Corporate Differences: Markets or Law? 9 J. APPLIED CORP. FIN. #4, at 23-29 (1997) (arguing that markets, rather than law, are determinative), and Brian R. Cheffins, Does Law Matter?: The Separation of Ownership and Control in the United Kingdom, ESRC Center for Business Research Working Paper No. 172, at 52-57 (2000) (finding that development of dispersed corporate ownership in England did not correspond to the adoption of legal protections for minority shareholders and that during the critical periods, other institutions provided minority shareholders with protections).
169. Two assumptions that are subject to dispute underlie the theoretical work dealing with the law's function in creating social meaning and norms, and in shifting social capital. One of these assumptions is that the public is aware of the law and changes in the law. There is, however, empirical work suggesting that even major legal changes are not well known. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 35-52 (1997) (surveying research showing generally low levels of public knowledge of criminal laws, sentencing laws, and constitutional rights); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 126 (1991) (describing research on the low level of public awareness of the Supreme Court and its decisions). For example, 90% of Ohio residents were unaware of the passage of a major state initiative to increase drug penalties, and Colorado residents were similarly unaware of legislation doubling the presumptive range of sentences under state law. See ROBERTS & STALANS, supra at 39; cf. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896 (1978) (finding that public approval ratings for a state supreme court did not vary from those for the executive and the legislature during a period when the court and the legislature were at odds in a prominent dispute over sources of funding for public schools; even in this situation, many members of the public apparently did not distinguish among positions taken by different branches of government). Note, however, that legislative activity has greater visibility than judicial activity, at least at the federal level. See Charles H. Franklin & Liane C. Kosaki, Media, Knowledge, and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 356-57 (1995) (Lee Epstein, ed.) (finding four times as many national news stories about Congress than about the Supreme Court). Even if law is known, that does not necessarily mean that it is responsible for shaping important perceptions or changing behavior. Social scientists and legal scholars are exploring the degree to which law can be shown to have such effects, and how its impact compares to that of other forces, such as economic forces. There is, for example, currently a lively dispute about the question whether certain features of the United States legal regime that protect minority shareholders are essential to the development of dispersed corporate ownership, which in turn provides resources for economic growth. Compare John H. Coffee, The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 641, 704-05 (1999) (arguing in favor of the importance of the legal regime), with Frank H. Easterbrook, International Corporate Differences: Markets or Law? 9 J. APPLIED CORP. FIN. #4, at 23-29 (1997) (arguing that markets, rather than law, are determinative), and Brian R. Cheffins, Does Law Matter?: The Separation of Ownership and Control in the United Kingdom, ESRC Center for Business Research Working Paper No. 172, at 52-57 (2000) (finding that development of dispersed corporate ownership in England did not correspond to the adoption of legal protections for minority shareholders and that during the critical periods, other institutions provided minority shareholders with protections).
170. Two assumptions that are subject to dispute underlie the theoretical work dealing with the law's function in creating social meaning and norms, and in shifting social capital. One of these assumptions is that the public is aware of the law and changes in the law. There is, however, empirical work suggesting that even major legal changes are not well known. See, e.g., JULIAN V. ROBERTS & LORETTA J. STALANS, PUBLIC OPINION, CRIME, AND CRIMINAL JUSTICE 35-52 (1997) (surveying research showing generally low levels of public knowledge of criminal laws, sentencing laws, and constitutional rights); GERALD N. ROSENBERG, THE HOLLOW HOPE: CAN COURTS BRING ABOUT SOCIAL CHANGE? 126 (1991) (describing research on the low level of public awareness of the Supreme Court and its decisions). For example, 90% of Ohio residents were unaware of the passage of a major state initiative to increase drug penalties, and Colorado residents were similarly unaware of legislation doubling the presumptive range of sentences under state law. See ROBERTS & STALANS, supra at 39; cf. Richard Lehne & John Reynolds, The Impact of Judicial Activism on Public Opinion, 22 AM. J. POL. SCI. 896 (1978) (finding that public approval ratings for a state supreme court did not vary from those for the executive and the legislature during a period when the court and the legislature were at odds in a prominent dispute over sources of funding for public schools; even in this situation, many members of the public apparently did not distinguish among positions taken by different branches of government). Note, however, that legislative activity has greater visibility than judicial activity, at least at the federal level. See Charles H. Franklin & Liane C. Kosaki, Media, Knowledge, and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 356-57 (1995) (Lee Epstein, ed.) (finding four times as many national news stories about Congress than about the Supreme Court). Even if law is known, that does not necessarily mean that it is responsible for shaping important perceptions or changing behavior. Social scientists and legal scholars are exploring the degree to which law can be shown to have such effects, and how its impact compares to that of other forces, such as economic forces. There is, for example, currently a lively dispute about the question whether certain features of the United States legal regime that protect minority shareholders are essential to the development of dispersed corporate ownership, which in turn provides resources for economic growth. Compare John H. Coffee, The Future as History: The Prospects for Global Convergence in Corporate Governance and Its Implications, 93 NW. U. L. REV. 641, 704-05 (1999) (arguing in favor of the importance of the legal regime), with Frank H. Easterbrook, International Corporate Differences: Markets or Law? 9 J. APPLIED CORP. FIN. #4, at 23-29 (1997) (arguing that markets, rather than law, are determinative), and Brian R. Cheffins, Does Law Matter?: The Separation of Ownership and Control in the United Kingdom, ESRC Center for Business Research Working Paper No. 172, at 52-57 (2000) (finding that development of dispersed corporate ownership in England did not correspond to the adoption of legal protections for minority shareholders and that during the critical periods, other institutions provided minority shareholders with protections).
171. Richard H. McAdams, The Origin, Development, and Regulation of Norms, 96 MICH. L. REV. 338, 358-64, 391 (1997) (presenting the theory of esteem-based norms, describing the conditions necessary for their development, and concluding that "an important function of law is to shape or regulate norms").
172. See id. at 358-64 (elaborating on the requisite conditions for esteem-based norms: consensus, the risk of detection of non-compliance, and the resultant "esteem-norm"). For example, suppose there is a sufficient consensus that certain conduct - e.g., putting your children in car seats - is desirable, and there is a risk that others will discover whether you put your children in car seats. If parents are aware that the consensus exists and that their behavior can be observed by others, their desire for the esteem of others will influence them to place their children in car seats in order to avoid their neighbors' disapproval. As the usage of car seats increases, the apparent consensus is strengthened; at the same time the cost of failing to use a child seat increases, and the likelihood of compliance by individuals increases. Why does not the consensus - which McAdams treats as one of the necessary conditions - itself demonstrate that a norm already exists? Where one's behavior cannot be known by others, failure to conform to behavior that others esteem will bring no disapproval from others. Similarly, if one is ignorant of either the existence of a consensus or of the risk of discovery, one would not fear disapproval if one did not adopt the behavior in question.
173. See id. at 397-407 (summarizing the expressive function of law and how it effects norms); see also Paul H. Robinson & John M. Darley, The Utility of Desert, 91 NW. U. L. REV. 453, 473 (1997) ("The passage of criminal legislation . . . often reflects a critical level of support for an incipient norm . . . [and] sometimes nurtures the norm."). Robinson and Darley make the interesting suggestion that American cultural diversity deprives us of a "pre-existing consensus on the contours of condemnable conduct that is found in more homogenous societies," and thus increases our comparative reliance on criminal law for norm-nurturing. Id. at 474.
174. See McAdams, supra note 107, at 401 (explaining the "bias aptly named the 'false consensus' effect").
175. See id. at 402-03 ("[The legislators'] decision to enact or not to enact legislation . . . declares to the public a winning side.").
176. For a different view of how the enactment of a statute, by itself, might change behaviors by creating or strengthening norms, see Robert Cooter, Expressive Law and Economics, 21 J. LEGAL STUD. 585, 593-96 (1998). Cooter theorizes that unenforced laws may improve behavior by solving collective action problems and thereby reaching Pareto superior equilibriums and/or causing a person to deliberately change his preferences through Pareto self-improvements. Note that Cooter limits his model to "social norms that contribute to productivity by increasing cooperalion." Id. at 588. He suggests that this analysis might apply to racial discrimination in the American South, see id. at 592, but it is unclear whether he would extend it to hate crimes legislation.
177. See generally Richard H. McAdams, An Attitudinal Theory of Expressive Law, 79 OR. L. REV., text accompanying notes 10-17 (forthcoming 2000).
178. One factor that may play a role in the incentive to use federal crime legislation for expressive purposes is the changing landscape of American media ownership and news consumption. Several developments suggest the possibility that there will be a trend toward more national news and less local news, thereby increasing the payoff for using federal legislation for expressive purposes. Consolidation is occurring in the newspaper industry, and national or international corporations are increasingly acquiring local newspaper companies. For example, the recent acquisition of the Los Angeles Times by the publisher of the Chicago Tribune is part of a trend toward media conglomerates that can offer advertisers outlets that will reach customers nationwide. See James Flanagan & Greg Miller, Tribune-Times Mirror Merger: Purchase Is a Bet on Value of 'Old' Media in Internet Era, L.A. TIMES, Mar. 14, 2000, at A1. This consolidation may be accompanied by a decrease in local news coverage and an increased reliance on more cost-effective use of national stories that can be incorporated throughout the chain. In addition, USA Today now offers a readily available (and popular) national newspaper. The typical local television channel now broadcasts to an area of more than 10,000 square miles, crossing city, county, and often state lines, which discourages the broadcast of local political or civic news. See Lawrence K. Grossman, Why Local TV News Is So Awful, 36 COLUM. JOURNALISM REV. 21 (1997). Use of the Internet to obtain news is increasing rapidly, and reliance on national network news, local television news, and newspapers is declining. In a May 2000 survey, 15% of respondents said they receive daily news reports from the Internet, up from 6% just two years earlier. The Pew Research Center for People and the Press, Investors Now Go Online for Quotes, Advice: Internet Sapping Broadcast News Audience (2000) 〈;http://www.people-press.org/media00rpt.htm〉 (commenting on American's new reliance on internet news reports). In addition, 33% said they went online for news at least once a week. See id. Between 1993 and May 2000 the number of respondents who watched local TV news fell from 77% to 56%, the number who watched nightly network news dropped from 60% to 30%, and those who said they read a newspaper yesterday dropped from 58% to 46%. See id. These factors suggest a shift to a regional and national media focus is occurring. To the extent that they focus on law (rather than other topics such as sports, weather, and crime) regional and national media are likely to focus on legislation at the federal level, rather than undertaking to follow events in multiple states or individual communities. Thus, even though persons may care most about the esteem of persons in their local communities, national legislation may have an increasingly significant impact on the creation and shaping of norms by publicizing the existence of consensus, and hence increasing the potential for loss of esteem.
179. One factor that may play a role in the incentive to use federal crime legislation for expressive purposes is the changing landscape of American media ownership and news consumption. Several developments suggest the possibility that there will be a trend toward more national news and less local news, thereby increasing the payoff for using federal legislation for expressive purposes. Consolidation is occurring in the newspaper industry, and national or international corporations are increasingly acquiring local newspaper companies. For example, the recent acquisition of the Los Angeles Times by the publisher of the Chicago Tribune is part of a trend toward media conglomerates that can offer advertisers outlets that will reach customers nationwide. See James Flanagan & Greg Miller, Tribune-Times Mirror Merger: Purchase Is a Bet on Value of 'Old' Media in Internet Era, L.A. TIMES, Mar. 14, 2000, at A1. This consolidation may be accompanied by a decrease in local news coverage and an increased reliance on more cost-effective use of national stories that can be incorporated throughout the chain. In addition, USA Today now offers a readily available (and popular) national newspaper. The typical local television channel now broadcasts to an area of more than 10,000 square miles, crossing city, county, and often state lines, which discourages the broadcast of local political or civic news. See Lawrence K. Grossman, Why Local TV News Is So Awful, 36 COLUM. JOURNALISM REV. 21 (1997). Use of the Internet to obtain news is increasing rapidly, and reliance on national network news, local television
180. One factor that may play a role in the incentive to use federal crime legislation for expressive purposes is the changing landscape of American media ownership and news consumption. Several developments suggest the possibility that there will be a trend toward more national news and less local news, thereby increasing the payoff for using federal legislation for expressive purposes. Consolidation is occurring in the newspaper industry, and national or international corporations are increasingly acquiring local newspaper companies. For example, the recent acquisition of the Los Angeles Times by the publisher of the Chicago Tribune is part of a trend toward media conglomerates that can offer advertisers outlets that will reach customers nationwide. See James Flanagan & Greg Miller, Tribune-Times Mirror Merger: Purchase Is a Bet on Value of 'Old' Media in Internet Era, L.A. TIMES, Mar. 14, 2000, at A1. This consolidation may be accompanied by a decrease in local news coverage and an increased reliance on more cost-effective use of national stories that can be incorporated throughout the chain. In addition, USA Today now offers a readily available (and popular) national newspaper. The typical local television channel now broadcasts to an area of more than 10,000 square miles, crossing city, county, and often state lines, which discourages the broadcast of local political or civic news. See Lawrence K. Grossman, Why Local TV News Is So Awful, 36 COLUM. JOURNALISM REV. 21 (1997). Use of the Internet to obtain news is increasing rapidly, and reliance on national network news, local television news, and newspapers is declining. In a May 2000 survey, 15% of respondents said they receive daily news reports from the Internet, up from 6% just two years earlier. The Pew Research Center for People and the Press, Investors Now Go Online for Quotes, Advice: Internet Sapping Broadcast News Audience (2000) 〈;http://www.people-press.org/media00rpt.htm〉 (commenting on American's new reliance on internet news reports). In addition, 33% said they went online for news at least once a week. See id. Between 1993 and May 2000 the number of respondents who watched local TV news fell from 77% to 56%, the number who watched nightly network news dropped from 60% to 30%, and those who said they read a newspaper yesterday dropped from 58% to 46%. See id. These factors suggest a shift to a regional and national media focus is occurring. To the extent that they focus on law (rather than other topics such as sports, weather, and crime) regional and national media are likely to focus on legislation at the federal level, rather than undertaking to follow events in multiple states or individual communities. Thus, even though persons may care most about the esteem of persons in their local communities, national legislation may have an increasingly significant impact on the creation and shaping of norms by publicizing the existence of consensus, and hence increasing the potential for loss of esteem.
181. On the other hand, cynicism about national politics might hamper the effectiveness of such a signal. Some members of the public consider Washington and the federal government out of touch with real people and under the control of special interest groups. (Indeed, this view may be held by Murray Edelman and by many interest group theorists.) Persons who harbor such views may not view the passage of federal legislation as a signal of national consensus.
182. Cass R. Sunstein, Social Norms and Social Roles, 96 COLUM. L. REV. 903, 912, 929-30 (1996) (arguing that society experiences continual changes in their norms).
183. See id. at 912 (arguing that societies often shift toward new norms).
184. See id. at 929 (arguing that "[p]eople often act in accordance with norms they wish were otherwise or even despise"); see also McAdams, supra note 107, at 364 (arguing that individuals will follow the consensus in order to gain esteem).
185. See Sunstein, supra note 116, at 929-30 (arguing that political actors can exploit dissatisfaction with existing norms in order to gain support).
186. See id. at 929 (naming several political activists as norm entrepreneurs including Martin Luther King Jr., William Bennett, Louis Farrakhan, Catherine MacKinnon, Ronald Reagan, and Jerry Falwell).
187. See Lawrence Lessig, The Regulation of Social Meaning, 62 U. CHI. L. REV. 943, 947 (1995) (arguing that government acts to construct social norms).
188. See, e.g., Richard H. Pildes, Why Rights Are Not Trumps: Social Meaning, Expressive Harms, and Constitutionalism, 27 J. LEGAL STUD. 725, 725 (1998).
189. See Lessig, supra note 121, at 1009 ("[T]he social meaning architect attempts to transform the social meaning of one act by . . . associating it with another social meaning that conforms to the meaning that the architect wishes the managed act to have.").
190. See Best, supra note 93, at 58-59 (describing efforts of gay and lesbian groups to establish an analogy between homosexuals and racial and religious minorities).
191. See generally J. M. Balkin, The Constitution of Status, 106 YALE L.J. 2313, 2321 & n.20 (1997). Social status is the degree of prestige and honor that groups (and individuals) enjoy. See id. at 2321 & n.20 (citing, inter alia. Max Weber).
192. See id. at 2323 (arguing that the identity of one group is defined by its relationship to the identity of another group). This point is easily understood in the context of India's caste system, and it also applies to other status hierarchies, such as the legal and social dominance of whites over blacks in the American South prior to the Civil Rights movement.
193. See Balkin, supra note 125, at 2328-29 (asserting that one has more status because others have correspondingly less status). Thus, status competition is zero-sum or non-Paretian. See id.
194. See id. at 2327-28; see also Chong, supra note 77, at 2088 ("Rational individuals try to improve their life circumstances by increasing not only their material resources, but also their status and power.").
195. See Balkin, supra note 125, at 2327-28 ("Status is not identical to wealth, political power or other social goods, but it is often correlated with them."); Chong, supra note 77, at 2088-89 (arguing that low status stigmatized groups experience disadvantages in employment, housing, and social relations as a result of people's attitudes and values). Chong, who attempts to defend a middle position between socio-psychological explanations and economic or rational choice models, provides an interesting account of various mechanisms by which values and norms may serve the rational interests of individuals and members of groups. See Chong, supra note 77, at 2091-2122.
196. Balkin, supra note 125, at 2327.
197. Id. at 2326.
198. See id. at 2334 (arguing that when status barriers begin to collapse, the dominant groups react with "fear, anger, and hate").
199. Arguments about morality play an important role in debates about the rights of homosexuals, and Balkin notes that similar arguments played a role in other legal movements that can be understood as status competitions, such as the temperance movement (in which native-born Protestants sought to reassert their dominance over Catholics and immigrants), and the feminist movement (which is frequently accused of being destructive of family values). See id. at 2331-32. He characterizes these debates as genuine struggles over what forms of life should be honored and receive moral approval, noting that "[t]he word 'morality' itself comes from the Latin mores, or modes of life, and the two concepts remain deeply connected." Id. at 2332.
200. Every change in the semiotic status quo is seen as an increase in honor, prestige, and even special treatment, because it is a departure from a baseline view of homosexuality as immoral.
201. See Best, supra note 93, at 60.
202. See Balkin, supra note 125, at 2338. Balkin notes the importance of forming alliances with powerful groups. For example, he states that the civil rights movement allied itself with northern business elites who wanted to reshape the culture of the South to their own ends. Balkin argues that the dismantling of unjust social hierarchies is one of the principal purposes of the American constitution, a document he argues was born out of a social and political revolution that sought to create a republican society as well as a republican form of government. See id. at 2345.
203. Supporters of the Kennedy proposal urged the Senate to "send a message" by enacting hate crime legislation, and many of the witnesses at Senate hearings on hate crime legislation made the same plea. See text accompanying notes 100-103.
204. See 5 U.S.C. § 6103(a) (1994).
205. See Gay and Lesbian Pride Month, 65 Fed. Reg. 36051 (2000).
206. See National Hispanic Heritage Month, 63 Fed. Reg. 49815 (1998).
207. See, e.g., H. Res. 254, 106th Cong. (1999) (expressing the sense of the House condemning recent hate crimes in Illinois and Indiana and stating that "crimes motivated by hatred against African-Americans, Jews, Asian-Americans, or other groups undermine the fundamental values of our Nation"); S. Res. 78, 105th Cong. (1997) (designating April 30, 1997 as "National Erase the Hate and Eliminate Racism Day" and requesting "that the President issue a proclamation calling upon the people of the United States and throughout the world to recognize the importance of using each day to take a stand against hate crimes and violence in their nations, states, neighborhoods, and communities").
208. See, e.g., H. Res. 254, 106th Cong. (1999) (expressing the sense of the House condemning recent hate crimes in Illinois and Indiana and stating that "crimes motivated by hatred against African-Americans, Jews, Asian-Americans, or other groups undermine the fundamental values of our Nation"); S. Res. 78, 105th Cong. (1997) (designating April 30, 1997 as "National Erase the Hate and Eliminate Racism Day" and requesting "that the President issue a proclamation calling upon the people of the United States and throughout the world to recognize the importance of using each day to take a stand against hate crimes and violence in their nations, states, neighborhoods, and communities").
209. See Senate 1999 Hearings, supra note 27, at 53 (statement of Akhil Amar proposing, inter alia, a federal civil right of action instead of a federal crime and a "stronger statement of principle," and suggesting that Congress declare that "Acting under our powers to protect the rights of every American citizen to freedom and equality, as contemplated by the Fourteenth Amendment, this Congress declares that all Americans are equal citizens, regardless of race, color, religion, national origin, gender, sexual orientation, or disability").
210. See, e.g., Robinson & Darley, supra note 109, at 481 & n.64 (stating that many regulatory offenses have been criminalized instead of increasing civil sanctions in order to bring into play the "moral stigmatization that criminal liability brings but civil liability does not").
211. In contrast, the designation of a national holiday has significant economic consequences and considerable symbolic importance, and the observance of the Martin Luther King holiday at the federal and state level has generated a good deal of public and political interest. There are significant financial limitations, however, on the number of days that can be designated as federal and state holidays.
212. A similar issue sometimes arises in connection with efforts to repeal long-unenforced morals legislation, such as laws making fornication and adultery a crime. These efforts sometimes founder when legislators equate repeal of criminal prohibitions with approval of the conduct in question. Is a decision to leave such provisions on the books a precedent for the enactment of criminal laws that will not be enforced? One important difference is in the character of the current legislative action. In the case of existing morals legislation, the objections to repeal are based upon social meaning, and the assumption that the repeal of such laws would be understood as governmental approval of the conduct in question. Is the refusal to convey such a symbolic message by repeal the same as the positive action of enacting new crimes in order to denounce conduct that will not be prosecuted (at least by federal authorities)? An additional complication to be confronted when assessing the social meaning of enactment without proposed enforcement is the question what information those on the receiving end of the "message" are likely to have about enforcement. As the proponents of the Kennedy bill envision the future, there would be few federal prosecutions but state enforcement would be enhanced by the federal-state-local partnership. This raises sharply the question of the degree to which public perceptions distinguish between federal and state/local law enforcement. Even if there is a mystique about federal law and the FBI, would the public (or would some of the groups most concerned) keep score separately on federal enforcement efforts as distinguished from state and local enforcement? On the one hand, the enactment of federal law to "send a message" presumes that the public is, to some degree, alert to this jurisdictional distinction. On the other hand, it seems unrealistic to push this idea too far.
213. See, e.g., DICTIONARY OF AMERICAN SLANG 359 (Robert L. Chapman ed., 3d ed. 1995) (defining the term as a verbal phrase which means to "overemphasize the importance of something; exaggerate or overreact").
214. See FRANCIS A. ALLEN, THE DECLINE OF THE REHABILITATIVE IDEAL: PENAL POLICY AND SOCIAL PURPOSE 48-49 (1981) (arguing that rehabilitative regimes tend to inflict larger deprivations of liberty and volition on their subjects than overtly punitive programs, and an individual officer's sense of self-restraint may be weakened when disabilities such as loss of liberty are characterized as therapeutic).
215. Attempts to expand the scope of federal criminal law to encompass new symbolic legislation might be counterproductive. If legislators press the envelope in terms of jurisdiction, they risk decisions holding that the legislation in question is beyond the power of Congress. Cf. United States v. Morrison, 120 S. Ct. 1740, 1754-55 (2000) (holding Congress lacked authority under the Commerce Clause to enact the civil remedies section of the Violence Against Women Act). This would be not only a legal setback, but it would also raise a new issue of the social meaning of the courts' decisions.
216. See Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 DUKE L.J. 1, 76, 84-85 (1997) (finding that symbolic statutes can produce peculiar results because they are not written to be enforced, but judges must nonetheless make them work). For examples that may bear out this concern, see John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 281-82 (1990) (finding that politically expedient, but unworkable, air pollution legislation forced the EPA to disregard its responsibility to implement the laws as written); Steve R. Johnson, The Dangers of Symbolic Legislation: Perceptions and Realities of the New Burden-of-Proof Rules, 84 IOWA L. REV. 413, 475-77 (1999) (positing that tax reform legislation "overpromised" by Congress will result in public dissatisfaction once litigation demonstrates the absence of real change); cf. House 1999 Hearings, supra note 5 (statement of John S. Baker, Jr.) (characterizing House bill paralleling Kennedy proposal as "yet another example of 'feel good' criminal law that does not accomplish what is hoped for and may bring about unfortunate and unintended results").
217. See Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 DUKE L.J. 1, 76, 84-85 (1997) (finding that symbolic statutes can produce peculiar results because they are not written to be enforced, but judges must nonetheless make them work). For examples that may bear out this concern, see John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 281-82 (1990) (finding that politically expedient, but unworkable, air pollution legislation forced the EPA to disregard its responsibility to implement the laws as written); Steve R. Johnson, The Dangers of Symbolic Legislation: Perceptions and Realities of the New Burden-of-Proof Rules, 84 IOWA L. REV. 413, 475-77 (1999) (positing that tax reform legislation "overpromised" by Congress will result in public dissatisfaction once litigation demonstrates the absence of real change); cf. House 1999 Hearings, supra note 5 (statement of John S. Baker, Jr.) (characterizing House bill paralleling Kennedy proposal as "yet another example of 'feel good' criminal law that does not accomplish what is hoped for and may bring about unfortunate and unintended results").
218. See Mark Tushnet & Larry Yackle, Symbolic Statutes and Real Laws: The Pathologies of the Antiterrorism and Effective Death Penalty Act and the Prison Litigation Reform Act, 47 DUKE L.J. 1, 76, 84-85 (1997) (finding that symbolic statutes can produce peculiar results because they are not written to be enforced, but judges must nonetheless make them work). For examples that may bear out this concern, see John P. Dwyer, The Pathology of Symbolic Legislation, 17 ECOLOGY L.Q. 233, 281-82 (1990) (finding that politically expedient, but unworkable, air pollution legislation forced the EPA to disregard its responsibility to implement the laws as written); Steve R. Johnson, The Dangers of Symbolic Legislation: Perceptions and Realities of the New Burden-of-Proof Rules, 84 IOWA L. REV. 413, 475-77 (1999) (positing that tax reform legislation "overpromised" by Congress will result in public dissatisfaction once litigation demonstrates the absence of real change); cf. House 1999 Hearings, supra note 5 (statement of John S. Baker, Jr.) (characterizing House bill paralleling Kennedy proposal as "yet another example of 'feel good' criminal law that does not accomplish what is hoped for and may bring about unfortunate and unintended results").
219. See supra text accompanying notes 56-64.
220. See Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 414, 463-76 (1999) (asserting that deterrence arguments obscure underlying moral controversy, averting direct social and cultural conflict).
221. In the case of the South Carolina dispute, external pressure was generated by the NAACP boycott, which placed the state under economic pressure. This economic pressure provided legislators with an alternative explanation for their ultimate support for the relocation of the flag.
222. See, e.g., TOM R. TYLER, WHY PEOPLE OBEY THE LAW 57-68, 170-78 (1990) (citing empirical data supporting strong links between perceived congruence of laws and personal morality, legitimacy of government, and voluntary compliance with the law); Tom R. Tyler & Robert J. Boeckmann, Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers, 31 L. & SOC'Y REV. 237, 255, 258 (1997) (finding public support for punishment of law-breakers stems more from concerns about moral cohesion than from fears about crime risk and dangerousness); see also Robinson & Darley, supra note 109, at 468-71 (citing to sources that find individual compliance with laws due to fear of social disapproval and sense of personal morality).
223. See, e.g., TOM R. TYLER, WHY PEOPLE OBEY THE LAW 57-68, 170-78 (1990) (citing empirical data supporting strong links between perceived congruence of laws and personal morality, legitimacy of government, and voluntary compliance with the law); Tom R. Tyler & Robert J. Boeckmann, Three Strikes and You Are Out, but Why? The Psychology of Public Support for Punishing Rule Breakers, 31 L. & SOC'Y REV. 237, 255, 258 (1997) (finding public support for punishment of law-breakers stems more from concerns about moral cohesion than from fears about crime risk and dangerousness); see also Robinson & Darley, supra note 109, at 468-71 (citing to sources that find individual compliance with laws due to fear of social disapproval and sense of personal morality).
224. See Richard A. Posner & Eric B. Rasmusen, Creating and Enforcing Norms, With Special Reference to Sanctions, 19 INT'L REV. L. & ECON. 369, 369-70 (1999) (noting that norms are cheap because they do not require costly governmental enforcement).
225. See Robinson & Darley, supra note 109, at 482-85 (predicting that laws supporting one side of divisive moral debate create a loss of the law's moral credibility among opponents, resulting in decreased public respect for the legislative process, judicial system and criminal law system as a whole).
226. See id. at 482-83. Whether hate crimes legislation encompassing gender orientation includes such a message is debatable. Although many proponents emphasize a significantly narrower message disavowing violence, others - both proponents and opponents - interpret such legislation more broadly as signifying tolerance, acceptance, and recognition of the dignity and value of the groups in question. See supra text accompanying notes 100-01, 130-36.
227. See supra notes 130-33 and accompanying text.
228. See Murphy v. Waterfront Commission, 378 U.S. 52, 56 (1964) (employing the phrase "cooperative federalism").
229. In FY 1999. for example, Congress authorized $17.8 billion for drug control, including $8.45 billion for the criminal justice system. Office of National Drug Control Policy, Executive Office of the President, Drug Data Summary (2000) 〈http://www.whitehousedrugpolicy.gov/drugfact/factsheet.html〉. See generally OFFICE OF NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT, NATIONAL DRUG CONTROL STRATEGY 2000 (2000) 〈http://www.whitehousedrugpolicy.gov/policy/policy〉. For a brief overview of federal drug control strategy, see ABRAMS AND BEALE, supra note 12, at 276-86, and Sandra Guerra, Domestic Drug Interdiction Operations: Finding the Balance, 82 J. CRIM. L. & CRIMINOLOGY 1109 (1992).
230. In FY 1999. for example, Congress authorized $17.8 billion for drug control, including $8.45 billion for the criminal justice system. Office of National Drug Control Policy, Executive Office of the President, Drug Data Summary (2000) 〈http://www.whitehousedrugpolicy.gov/drugfact/factsheet.html〉. See generally OFFICE OF NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT, NATIONAL DRUG CONTROL STRATEGY 2000 (2000) 〈http://www.whitehousedrugpolicy.gov/policy/policy〉. For a brief overview of federal drug control strategy, see ABRAMS AND BEALE, supra note 12, at 276-86, and Sandra Guerra, Domestic Drug Interdiction Operations: Finding the Balance, 82 J. CRIM. L. & CRIMINOLOGY 1109 (1992).
231. In FY 1999. for example, Congress authorized $17.8 billion for drug control, including $8.45 billion for the criminal justice system. Office of National Drug Control Policy, Executive Office of the President, Drug Data Summary (2000) 〈http://www.whitehousedrugpolicy.gov/drugfact/factsheet.html〉. See generally OFFICE OF NATIONAL DRUG CONTROL POLICY, EXECUTIVE OFFICE OF THE PRESIDENT, NATIONAL DRUG CONTROL STRATEGY 2000 (2000) 〈http://www.whitehousedrugpolicy.gov/policy/policy〉. For a brief overview of federal drug control strategy, see ABRAMS AND BEALE, supra note 12, at 276-86, and Sandra Guerra, Domestic Drug Interdiction Operations: Finding the Balance, 82 J. CRIM. L. & CRIMINOLOGY 1109 (1992).
232. In 1998 drug cases accounted for 40.7% of the cases in the federal courts. U.S. Sentencing Commission, 1998 Annual Report: Distribution of Offenders in Each Primary Offense Category (2000) 〈http:www.ussg.gov/ANNRPT/1998/fid-a.pdf〉; see also FEDERAL JUDICIAL CENTER, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 1999 (17,483 drug cases were commenced in the federal courts).
233. In 1998 drug cases accounted for 40.7% of the cases in the federal courts. U.S. Sentencing Commission, 1998 Annual Report: Distribution of Offenders in Each Primary Offense Category (2000) 〈http:www.ussg.gov/ANNRPT/1998/fid-a.pdf〉; see also FEDERAL JUDICIAL CENTER, JUDICIAL BUSINESS OF THE UNITED STATES COURTS 1999 (17,483 drug cases were commenced in the federal courts).
234. See, e.g., Robert P. Inman & Daniel L. Rubinfeld, Rethinking Federalism, J. ECON. PERSP. 43, 56-57 (1997) (analyzing the leeway provided to states by the Welfare Reform Act of 1996 under three identified principles of federalism: democratic, economic, and cooperative federalism);
235. Elizabeth Rosan, EPA's Approach To Endangered Species Protection In State Clean Water Act Programs, 30 ENVT'L L. 447, 452 (2000) (describing structure of Clean Water Act in terms of cooperative federalism);
236. Stephen D. Sugarman, Welfare Reform and the Cooperative Federalism of America's Public Income Transfer Programs, 14 YALE L. & POL'Y REV. 123 (1996);
237. Philip J. Weiser, Chevron, Cooperative Federalism, and Telecommunications Reform, 52 VAND. L. REV. 1 (1999). For a discussion of various models of federalism, including cooperative federalism,
238. see THOMAS R. DYE, AMERICAN FEDERALISM: COMPETITION AMONG GOVERNMENTS 1-13 (1990).
239. See Sandra Guerra, The Myth of Dual Sovereignty: Multijurisdictional Drug Law Enforcement and Double Jeopardy, 73 N.C. L. REV. 1159, 1188-89 (1995) [hereinafter Guerra, Multijurisdictional] (discribing how federal law requires states receiving grants to meet conditions such as comprehensive drug testing within their criminal justice systems and suspension of driving privileges for persons convicted of drug offenses).
240. See, e.g., MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION, 1968-78 at 4 (1980) (noting that legislation that created LEAA adopted a block grant approach, in which fighting crime would remain a state and local function, and federal government's primary role would be to provide revenues and ideas allowing states to develop programs for their own use); NANCY E. MARION, A HISTORY OF FEDERAL CRIME CONTROL INITIATIVES, 1960-93 56-58 (1994) (noting LEAA's block grant design was supported by Republicans and Southern Democrats in Congress, who felt that federal government should not involve itself directly in local police efforts).
241. See, e.g., MALCOLM M. FEELEY & AUSTIN D. SARAT, THE POLICY DILEMMA: FEDERAL CRIME POLICY AND THE LAW ENFORCEMENT ASSISTANCE ADMINISTRATION, 1968- 78 at 4 (1980) (noting that legislation that created LEAA adopted a block grant approach, in which fighting crime would remain a state and local function, and federal government's primary role would be to provide revenues and ideas allowing states to develop programs for their own use); NANCY E. MARION, A HISTORY OF FEDERAL CRIME CONTROL INITIATIVES, 1960-93 56-58 (1994) (noting LEAA's block grant design was supported by Republicans and Southern Democrats in Congress, who felt that federal government should not involve itself directly in local police efforts).
242. The Drug Enforcement Administration developed DEA State and Local Task Forces in the 1970s and Organized Crime Drug Enforcement Task Forces in the 1980s; both create multijurisdictional groups that bring together federal, state, and local law enforcement officials. These programs provide federal authorities with access to additional manpower and street-level intelligence, while state and local officials garner federal funds as well as the prestige of working as equals with federal officials. See Guerra, Multijurisdictional, supra note 162, at 1185-86. The High Intensity Drug Trafficking Areas program headed by Office of National Drug Control Policy funds more than 460 initiatives bringing together 35 federal law enforcement agencies and more than 1,000 state and local agencies. NATIONAL DRUG CONTROL STRATEGY 2000, supra note 159, at 68.
243. See Department of Justice, Agency Budget Summary, Drug Enforcement Administration (2000) 〈http://whitehousedrugpolicy.gov/policy/99ndcsbudget/assets.html〉 (stating proposed DEA budget, including $102 million allocated to state and local task forces).
244. See Department of Justice, Agency Budget Summary (2000) 〈http://www.whitehousedrugpolicy.gov/policy/99ndcsbudget/drug.html〉 (detailing Assets Forfeiture Fund, including $208 million for state and local assistance).
245. HERMAN GOLDSTEIN, POLICING A FREE SOCIETY 131-32 (decentralized police function in the United States is one of most distinctive features of national system) (1977). See generally 1 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.9(C) (2d ed. 1999).
246. HERMAN GOLDSTEIN, POLICING A FREE SOCIETY 131-32 (decentralized police function in the United States is one of most distinctive features of national system) (1977). See generally 1 WAYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 1.9(C) (2d ed. 1999).
247. See LAFAVE, supra note 164, at § 1.9(C).
248. See id. (3,086 sheriffs' departments and 12,350 municipal police departments).
249. See Kevin R. Wright, The Desirability of Goal Conflict Within the Criminal Justice System, 9 J. CRIM. JUST. 209, 213-14 (1981) (arguing that fragmentation of current system is desirable because it promotes a balance of power and allows conflicts in community values to be played out and resolved).
250. See United States v. All Assets of G.P.S. Automotive Corp., 66 F.3d 483, 497-99 (2d Cir. 1995) (calling for the Supreme Court to reevaluate the dual sovereignty doctrine in light of the "unparalleled" levels of cooperation between federal and state law enforcement officials, particularly in the area of drug enforcement); Guerra, Multijurisdictional, supra note 162, at 1192-1210 (arguing that dual prosecutions are appropriate only where two sovereigns have different laws, priorities and interests and that these factors are absent in the context of multijurisdictional drug task forces).
251. See G.P.S. Automotive, 66 F.3d at 499.
252. See, e.g., Strazzella, supra note 8, at 21 (in FY 1997 there were no prosecutions under federal statutes criminalizing drive by shootings, interstate domestic violence, and failure to report child abuse; other statutes were used infrequently).
253. See Jamie S. Gorelick & Harry Litman, Prosecutorial Discretion and the Federalism Debate, 46 HASTINGS L.J. 967, 971 (1995) (arguing against limiting federal jurisdiction to "fixed-spheres" in favor of broader concurrent jurisdiction limited by prosecutorial discretion). When this article was written Ms. Gorelick was Deputy Attorney General and Mr. Litman was Deputy Assistant Attorney General.
254. See, e.g., REPORT OF THE FEDERAL COURTS STUDY COMMITTEE, FEDERAL COURTS STUDY COMMITTEE 38 (1990) (dissenting statement of Assistant Attorney General Edward Dennis) (arguing inter alia that drug federal prosecutions are needed in order to make available wiretap authority, grants of immunity, and forfeiture authority that would not be available under the laws of some states); see also ABRAMS AND BEALE, supra note 12, at 646-48 (exploring factors that may affect the choice of jurisdiction in cases of concurrent jurisdiction, including differences in substantive law, penalties, procedures, evidentiary rules, and constitutional doctrines limiting investigative techniques and evidence gathering).
255. For example, in one case involving three defendants accused of a racially motivated murder, state officials agreed that a federal prosecution would be more favorable to the prosecution because state law entitled each defendant to a separate trial, limited the admission of co-conspirators' statements, and likely would not have resulted in as long a period of incarceration as would occur under federal law. See Senate 1998 Hearings, supra note 27, at 33-34 (statement of William C. Sowder, District Attorney, Lubbock County, Texas).
256. See generally Sara Sun Beale, Too Many and Yet Too Few: New Principles to Define the Proper Limits for Federal Criminal Jurisdiction, 46 HASTINGS L.J. 979, 982 (1995).
257. See, e.g., United States v. Ucciferri, 960 F.2d 953, 953 (11th Cir. 1992) (upholding federal prosecution sought in Florida case to take advantage of less stringent federal rules concerning search warrants, wire surveillance, and informants).
258. See Taking Cash Into Custody: A Special Report on Police and Drug Money Seizures (2000) 〈http://www.kcstar.com/projects/drugforfeit/index.html〉 (detailing, in a series of articles, the evasion of state law by federal forfeiture statutes).
259. See id.; see also Eric Blumenson & Eva Nilsen, Policing for Profit: The Drug War's Hidden Economic Agenda, 65 U. CHI. L. REV. 35, 40-41 (1998) (arguing that forfeiture revenues are distorting government policymaking and law enforcement, and creating self-financing unaccountable law enforcement agencies).
260. For example, state constitutional restrictions might deserve greater deference than state procedural rules. Similarly, there might be special concern when state officials evade state laws that channel forfeiture proceeds away from law enforcement, using federal procedures to obtain financial support for their own activities.
261. Cf. Gorelick & Litman, supra note 174, at 970-71 (describing judicious use of federal jurisdiction to prosecute members of gangs involved in murder and witness intimidation, using federal resources including witness protection program).
262. See Beale, supra 177, at 1016-17.
263. See supra at pp. 1230-1231.
264. See generally REPORT OF THE FEDERAL COURTS STUDY COMMITTEE, supra note 175 (describing problem of overloading the federal courts with cases that could be brought in the state courts).