Hate Crimes Act Makes Conference Report, Death Penalty Gone

Judy Shepard, the mother of Matthew Shepard, with President Obama. (Image by Pete Sousa/White House.)

Judy Shepard, the mother of Matthew Shepard, with President Obama. (Image by Pete Souza/White House.)

On the 11th anniversary of the day Matthew Shepard was found, beaten and left for dead, the Conference Report for the Defense Department Appropriations Reauthorization was released on Wednesday afternoon containing the bill named in his honor. A PDF can be downloaded at this Web site.

On page 1471 of the PDF (1350 of the bill), the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act can be found. What this means is that the Reauthorization coming back to each chamber of Congress will include the hate crimes provision and, assuming the chambers’ passage of the bill, the Hate Crimes Prevention Act will be heading to President Barack Obama in short order for signing.

First of all, Stars and Stripes confirms that the F-22 funding, removed by the Senate, was not put back in the bill in Conference.  So, that eliminates that hurdle, which I earlier discussed here.

As to the actual Hate Crimes Prevention Act language, the death penalty language, added by Sen. Jeff Sessions, is gone (a move that very much pleases me personally).  On page 1483 (1361 of the bill), the penalties lay out a maximum of life imprisonment for the most severe types of hate-motivated crimes. They are when:

  • death results from the offense.
  • the offense includes kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.

The bill provides for no greater penalties.  The other two provisions added by Senator Sessions, however, do remain in the bill.  The first requires that the Attorney General “establish neutral and objective criteria for determining whether a crime was committed because of the actual or perceived status of any person.”  Groups supporting passage of the hate crimes bill opposed this amendment because they saw it as adding a redundant step to the process for implementing the law.  The second is the “Prohibition on attacks on United States servicemen on account of service,” which was opposed due to concerns about redundancy and vagueness.

As to the First Amendment concerns raised by the ACLU — and discussed here — about the Senate version because it simply stated that the bill does not impact First Amendment protections, it appears that the Conference Committee tried to find a compromise.  In Sec. 4710 of the Conference Report (at page 1366 of the bill), the “Rule of Construction” lays out a meld of both the House and Senate language.  It includes a portion about admission of evidence that is closer to the House version than the Senate version:

Nothing in this division shall be construed to allow a court, in any criminal trial for an offense described under this division or an amendment made by this division, in the absence of a stipulation by the parties, to admit evidence of speech, beliefs, association, group membership, or expressive conduct unless that evidence is relevant and admissible under the Federal Rules of Evidence. Nothing in this division is intended to affect the existing rules of evidence.

It goes on to state:

Nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the first amendment to the Constitution of the United States. Nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person’s exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association was not intended to: (A) plan or prepare for an act of physical violence; or (B) incite an imminent act of physical violence against another.

Then, in case the point was not yet made clear, three more provisions, present in the Senate version, reinforce this point:

FREE EXPRESSION.—Nothing in this division shall be construed to allow prosecution based solely upon an individual’s expression of racial, religious, political, or other beliefs or solely upon an individual’s membership in a group advocating or espousing such beliefs.

FIRST AMENDMENT.—Nothing in this division, or an amendment made by this division, shall be construed to diminish any rights under the first amendment to the Constitution of the United States.

CONSTITUTIONAL PROTECTIONS.—Nothing in this division shall be construed to prohibit any constitutionally protected speech, expressive conduct or activities (regardless of whether compelled by, or central to, a system of religious belief), including the exercise of religion protected by the first amendment to the Constitution of the United States and peaceful picketing or demonstration. The Constitution of the United States does not protect speech, conduct or activities consisting of planning for, conspiring to commit, or committing an act of violence.

This appears to me to take a controversial issue — the perceived potential impact of hate crimes penalty enhancement provisions on protected speech and other expressive activity — and provide as much reassurance in as many ways as proposed to strongly reinforce that the aim of the legislation is not to impact that protected activity.  Whether it will be enough to meet with the desires of the ACLU remains to be seen.

[FOLLOW-UP: Comment from the ACLU, as well as the House vote, can be found here.]

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About the Author

Chris Geidner is the award-winning senior political & legal reporter at BuzzFeed and has written for Metro Weekly, The Atlantic Online, The American Prospect, Advocate.com, Salon and other publications, as well as at his blog, Law Dork. He has appeared regularly on television commenting on current affairs, including MSNBC, PBS, HLN & Current. Prior to moving to D.C. in 2009, he served as an attorney on the senior staff at the Ohio Attorney General's Office and had earlier worked for a leading Columbus law firm. An extended biography can be found here, and you can follow him on Twitter.