RS20678 -- Hate Crimes: Sketch of Selected Proposals and Congressional Authority
Updated May 17, 2002

	Introduction

S. 625 , the Local Law Enforcement Enhancement Act of 2001, introduced by Senator Kennedy on March 27, 2001, has 50 cosponsors; its companionin the House, H.R. 3473) to the NationalDefense Authorization Act for Fiscal Year 2001( H.R. The second applies to crimes motivated by the victim's gender, sexual orientation, disability, race, color,religion, or national origin and contains a seriesof alternative jurisdictional elements of a commerce clause stripe. 74 would establish the same two offenses, but hasno certification requirement. Grants : Each of the proposals features a grant program to help the states combat hate crimes committed by juveniles, authorizing such appropriations as arenecessary. Sentencing Guidelines : Each proposal instructs the Sentencing Commission to study and make any appropriate adjustments in the federal sentencing guidelinesconcerning adult recruitment of juveniles to commit hate crimes, consistent with the other federal sentencingguidelines and being sure to avoid duplication. The commerce clause, section 5of the Fourteenth Amendment and section 2 of the Thirteenth Amendment and Fifteenth Amendment, are the grantsof power most often mentioned whendiscussing Congress' authority to proscribe hate crimes, and to enact other forms of civil rights legislation. The Supreme Court in Lopez and Morrison identified the threeways in which Congress may exercise its prerogatives under the clause:"First, Congress may regulate the use of the channels of interstate commerce. First, they create a federal crime for which an aspect of interstatecommerce is an element, i.e., in the case of H.R. , religion, national origin). The hate crime proposals would have encloaked groupssubject to classification by "race, color, religion, or nationalorigin."
Hate crime legislation (S. 625/H.R. 1343), comparable to a measure whichpassed the Senateas an amendment to the National Defense Authorization Act for Fiscal Year 2001 (but which was dropped prior topassage), has been introduced with a substantialnumber of cosponsors in both the House and Senate. It outlaws hate crimes, establishes a system of JusticeDepartment and grant program assistance, andinstructs the Sentencing Commission to examine adult recruitment of juveniles to commit hate crimes. It has beenreported out of committee unchanged in theSenate, S.Rept. 107-147 (2002). An alternative (H.R. 74), more sweeping in its criminal provisions and moremodest in its grant provisions, has alsobeen proposed.
In both alternatives, the newly established federal offenses take two forms and are based on Congress'legislative authority under the commerce clause, thelegislative sections of the Thirteenth, Fourteenth, and Fifteenth Amendment. One species outlaws hate crimescommitted on the basis of race, color, religion,national origin, gender, sexual orientation, or disability under various commerce clause circumstances and appearsconsistent with the Supreme Court'spronouncements in Lopez and Morrison. The other forbids hate crimes committed on thebasis of race, color, religion or national origin. Although its claim toCongressional authority seems strongest when based on the Thirteenth Amendment and proscribing violencecommitted on the basis of race, its hold appearsotherwise more tenuous.
This report is an abridged version of CRS Report RL30681(pdf), Hate Crimes: Summary of Selected Proposalsand Congressional Authority, stripped of the footnotes,authorities, and appendices of that report; for additional related information, see also CRS Report 98-300, Hate Crime Legislation: An Update.