TUCKED INTO the Senate version of the Commerce, State, Justice appropriations bill is language by Sens. Ted Kennedy (D-Mass.) and Arlen Specter (R-Pa.) that expands the federal power to prosecute hate crimes. Also in the bill is alternative language by Judiciary Committee Chairman Orrin Hatch (R-Utah). The House version of the spending bill has no hate crimes language, and the future of the Commerce, State bill is generally in doubt. But hate crimes legislation is definitely closer to enactment now than it has been.
The Kennedy-Specter bill has been kicking around the Senate for almost two years, and it has improved in one key respect during that time. We remain skeptical of federalizing presumptively state offenses and also have problems with the notion of prosecuting differently crimes motivated by hatred and physically indistinguishable violent offenses motivated by other emotions. But the bill is certainly a more measured step than it was before.
Current law allows the federal government to prosecute someone who violently interferes with another person's exercise of a set of federally protected activities -- such as attending public schools -- because of that person's race, religion or national origin. The proposal would add sexual orientation, gender and disability status to the list of identities that can trigger federal involvement. And, critically, it would relax the requirement that the target be engaged in a federally protected activity.
Inclusion of sexual orientation under existing law is clearly a good idea (gender is a bit more complicated). The concern about the bill was that by eliminating the requirement that the target be engaged in a federally protected activity, it would create federal jurisdiction over a group of presumptively state matters in which the federal interest seemed limited. Hatred seems an inadequate predicate for federal involvement, and the bill did not do enough to keep the feds out of cases that could be handled adequately at the state level.
That, however, has changed somewhat. The latest version would permit federal prosecutors to take over a case only if a senior official of the Justice Department certified that the state in question either lacks jurisdiction, has requested federal involvement or is otherwise unable or unwilling to bring an appropriate case. This seems to restrict use of the law to those situations in which the states have truly failed to bring a violent perpetrator to justice.
The Hatch language, for its part, does not include sexual orientation within the scope of the existing federal authority -- the major virtue of the Kennedy-Specter version. But one of its provisions does offer what is, in our judgment, a constructive alternative vision of the federal role in hate crimes. That provision authorizes the federal government to assist states technically and financially in prosecuting such crimes under their own laws. A marriage between this concept and some of the changes in the Kennedy-Specter version could produce a useful compromise.