AS CONGRESS struggles to get out of town, a last-minute effort to pass hate crimes legislation is underway. We have long opposed hate crimes laws and share the anxieties about any bill sold as a new federal authority to prosecute bias-motivated violence. One does not have to be a racist or homophobe to worry about needless federalizations of presumptively local offenses or about a criminal regime that would treat two physically identical crimes differently on account of the motive of the perpetrator.
At the same time, the two major bills pending in the Senate -- one sponsored by Sens. Ted Kennedy and Arlen Specter and the other by Judiciary Committee Chairman Orrin Hatch -- both contain useful ideas. A bill that married the chief virtues of the two proposals would helpfully modify existing criminal civil rights statutes.
Current law permits federal prosecution of violent efforts to interfere with a person's exercise of certain federally protected activities because of that person's race, ethnicity or religion. But this criminal civil rights law does not include sexual orientation as a trigger for federal authority. So while the feds have jurisdiction to prosecute a violent interference with a Jewish or African American student's ability to attend a public university, for example, a gay student killed because someone doesn't want gays at his school would not trigger federal jurisdiction.
The Kennedy-Specter bill would include sexual orientation under this law, which seems like an obvious step. Unfortunately, Kennedy-Specter also would include disability status -- which seems unnecessary -- and gender, which opens the can of worms of federal jurisdiction over certain rapes. These should be left out.
The bill also would relax the requirement that the target of the crime be involved in a federally protected activity -- the feature that, in earlier versions, gave rise to serious concerns about overly broad federal jurisdiction. The latest version, however, is significantly improved. It would require that a senior Justice Department official certify in each case under the law that state law enforcement was either unable or unwilling to prosecute or had requested federal involvement. This narrows the scope of the proposal to that small group of cases in which someone has been violently targeted because of his identity and can expect no recourse from his state government.
Sen. Hatch's bill also includes a useful idea -- that the federal government should be authorized to assist state and local investigations of hate crimes even where there is no jurisdiction for federal prosecution. This provision could potentially affect a wider array of cases than the expanded federal jurisdiction contemplated by the Kennedy-Specter bill. A bill that further narrowed the Kennedy-Specter proposal by removing gender and disability status and added this Hatch provision would be a useful addition to federal criminal civil rights enforcement, not a generalized federal hate crimes statute of the sort that rightly inspires nervousness.