[Senate Hearing 111-915]
[From the U.S. Government Publishing Office]
S. Hrg. 111-915
CRIMES AGAINST AMERICA'S HOMELESS: IS THE VIOLENCE GROWING?
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HEARING
before the
SUBCOMMITTEE ON CRIME AND DRUGS
of the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE
ONE HUNDRED ELEVENTH CONGRESS
SECOND SESSION
__________
SEPTEMBER 29, 2010
__________
Serial No. J-111-112
__________
Printed for the use of the Committee on the Judiciary
PATRICK J. LEAHY, Vermont, Chairman
HERB KOHL, Wisconsin JEFF SESSIONS, Alabama
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
ARLEN SPECTER, Pennsylvania JON KYL, Arizona
CHARLES E. SCHUMER, New York LINDSEY GRAHAM, South Carolina
RICHARD J. DURBIN, Illinois JOHN CORNYN, Texas
BENJAMIN L. CARDIN, Maryland TOM COBURN, Oklahoma
SHELDON WHITEHOUSE, Rhode Island
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
AL FRANKEN, Minnesota
Bruce A. Cohen, Chief Counsel and Staff Director
Matthew S. Miner, Republican Chief Counsel
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Subcommittee on Crime and Drugs
ARLEN SPECTER, Pennsylvania, Chairman
HERB KOHL, Wisconsin LINDSEY GRAHAM, South Carolina
DIANNE FEINSTEIN, California ORRIN G. HATCH, Utah
RUSSELL D. FEINGOLD, Wisconsin CHARLES E. GRASSLEY, Iowa
CHARLES E. SCHUMER, New York JEFF SESSIONS, Alabama
RICHARD J. DURBIN, Illinois TOM COBURN, Oklahoma
BENJAMIN L. CARDIN, Maryland
AMY KLOBUCHAR, Minnesota
EDWARD E. KAUFMAN, Delaware
Hannibal Kemerer, Democratic Chief Counsel
Walt Kuhn, Republican Chief Counsel
C O N T E N T S
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STATEMENTS OF COMMITTEE MEMBERS
Page
Cardin, Hon. Benjamin L., a U.S. Senator from the State of
Maryland....................................................... 1
prepared statement........................................... 42
WITNESSES
Johnson, Hon. Eddie Bernice, a Representative in Congress from
the State of Texas............................................. 3
Levin, Brian H., Professor, California State University, San
Bernardino, San Bernardino, California......................... 6
Luna, Erik, Professor of Law, Washington and Lee University
School of Law, Lexington, Virginia............................. 9
Manning-Moon, Simone, Decatur, Georgia........................... 7
Muhlhausen, David B., Research Fellow in Empirical Policy
Analysis, Center for Data Analysis, The Heritage Foundation,
Washington, DC................................................. 14
Wierzbicki, Richard, Commander, Hate Crimes/Anti-Bias Task Force,
Broward County Sheriff's Office, Fort Lauderdale, Florida...... 12
QUESTIONS AND ANSWERS
Responses of Brian Levin to questions submitted by Senator Coburn 24
Responses of Erik Luna to questions submitted by Senator Coburn.. 27
Responses of David Muhlhausen to questions submitted by Senator
Coburn......................................................... 36
Responses of Richard Wierzbicki to questions submitted by
Senators Coburn and Klobuchar.................................. 38
SUBMISSIONS FOR THE RECORD
Collins, Hon. Susan M., a U.S. Senator from the State of Maine,
prepared statement............................................. 46
Hannah Rufus, San Diego, California, letter...................... 47
Johnson, Hon. Eddie Bernice, a Representative in Congress from
the State of Texas, statement.................................. 49
Lamberti, Al, Sheriff, Broward County, Florida, statement........ 51
Levin, Brian H., Professor, California State University, San
Bernardino, San Bernardino, California, statement and
attachments.................................................... 54
Luna, Erik, Professor of Law, Washington and Lee University
School of Law, Lexington, Virginia, statement.................. 131
Manning-Moon, Simone, Decatur, Georgia, statement................ 146
Miscellaneous Coalition letter to Senator Cardin, joint letter... 149
Muhlhausen, David B., Research Fellow in Empirical Policy
Analysis, Center for Data Analysis, The Heritage Foundation,
Washington, DC, statement...................................... 156
National Coalition for the Homeless, Washington, DC, statement
and attachments 1-5............................................ 167
National Law Center on Homelessness & Poverty, Washington, DC,
statement...................................................... 230
O'Malley, Martin, Governor, State of Maryland, Annapolis,
Maryland, statement............................................ 233
Ros-Lehtinen, Hon. Ileana, a Representative in Congress from the
State of Florida, prepared statement........................... 235
Statewide Legislation Status of hate Crimes Against the Homeless,
chart.......................................................... 236
Wierzbicki, Richard, Commander, Hate Crimes/Anti-Bias Task Force,
Broward County Sheriff's Office, Fort Lauderdale, Florida...... 237
ADDITIONAL SUBMISSIONS FOR THE RECORD
Submissions for the record not printed due to voluminous nature,
previously printed by an agency of the Federal Government, or
other criteria determined by the Committee, list:
National Coalition for the Homeless, attachment 6,
Nationalhomeless.org/publications
Reports--Hate Crimes Against the Homeless: America's Growing
Tide of Violence 2009
CRIMES AGAINST AMERICA'S HOMELESS: IS THE VIOLENCE GROWING?
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WEDNESDAY, SEPTEMBER 29, 2010
U.S. Senate,
Subcommittee on Crime and Drugs,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 10:01 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Benjamin L.
Cardin, presiding.
Present: Senator Cardin.
OPENING STATEMENT OF HON. BENJAMIN L. CARDIN, A U.S. SENATOR
FROM THE STATE OF MARYLAND
Senator Cardin. Good morning, everyone. The Crime
Subcommittee of the Senate Judiciary Committee will come to
order.
I first want to thank Senator Specter, the Chairman of the
Crime Subcommittee, for allowing me to conduct today's
Subcommittee hearing. This is a subject that has been a
priority for our Committee, and I appreciate Senator Specter's
leadership.
When I hear the horrific stories about murders, assaults,
and rapes committed against our Nation's homeless, I ask
myself: Is this really America? When I hear the story of Norris
Gaynor being beaten to death by baseball bats while sleeping on
a park bench, I ask myself: Where is all this violence coming
from?
When I heard about John McGraham being doused with gasoline
and set ablaze, I was shocked and horrified that this could
happen to a fellow human being and just wondered where we are
heading.
Now, these are just two examples of a larger problem. Last
fall, I introduced the Hate Crimes Against the Homeless
Statistics Act with Senator Collins in an effort to get uniform
data collection on this type of violence. My bill would only
require data collection on bias-motivated crimes against the
homeless. What that means is I want the Federal Government to
track how many crimes are being committed against the homeless
just because they are homeless.
Currently, the Hate Crime Statistics Act of 1990 requires
the Department of Justice to collect data information from law
enforcement agencies of crimes that manifest evidence of
prejudiced based upon race, religion, sexual orientation,
ethnicity, disability, gender, or gender identity. However,
that was not always the case. When the law was first passed in
1990, the FBI was only required to collect data about crimes
based upon race, religion, sexual orientation, and ethnicity.
Then in 1994, Congress added disability, and just recently the
Congress amended the statute again requiring data collections
on gender and gender identity.
Now, there are some individuals that believe that data
collection is unnecessary. I disagree. I think the best way to
develop a strategy to deal with a problem is to make sure that
you have accurate information in order to be able to act.
The National Coalition on Homeless has been documenting
these bias-motivated acts of violence for over 11 years.
According to their numbers, bias-motivated crimes against the
homeless are pervasive and growing. Just last year, 43 people
died, making 2009 the deadliest year for attacks on homeless
people.
Now, one might think that 43 is not such a great number.
But when you compare that number to the information that we
have on other acts under the Hate Crimes, that number is much,
much larger than the others that have suffered death as a
result of hate crime activities.
According to the FBI hate crime statistics, seven homicides
were classified as hate crimes in 2008. In that same year, 27
fatal attacks occurred on homeless persons, according to the
National Coalition for the Homeless. The National Coalition for
the Homeless has done an amazing job trying to track and
document all those crimes from the greater public. But they are
not law enforcement. We need to have consistent information
that is collected by the FBI so that we know the extent of the
problem relative to other areas of concern.
According to the Department of Housing and Urban
Development's latest report to Congress, approximately 640,000
persons were homeless on any given night in 2009, and roughly
1.5 million people, or one out of every 200 Americans, spent at
least one night in a shelter during 2009. Veterans account for
about 20 percent of our homeless population. Families displaced
because of domestic violence make up 28 percent of our homeless
population. But the fastest-growing number of people who are
homeless by demographics are families with children. It is our
responsibility to strengthen programs to reduce the number of
homeless in all categories here in America.
As we see the number of families increase, we also see the
number of available shelters decrease. For example, in
Baltimore County, we have seen a rise in homeless families, but
a lack of space to provide them with safe housing. According to
recent statistics, shelter space increased 25 percent last
year. But according to the Maryland Department of Social
Services, the number of homeless parents seeking emergency
housing has more than doubled in the past 5 years.
So here is what we do know. We know that violence is
occurring against this population. We know that the unhoused
population in America is growing. One can make an educated
guess that these two facts may lead to more victims. But I do
not want to guess. I want to get the facts. That is why I
believe Congress should enact the law to allow us to get the
information.
This Nation was founded on the principles that Government
must seek a more perfect union for the people and the
Government must provide for the general welfare so that every
man and woman can live in security and liberty. America's
homeless are mothers and fathers, brothers and sisters,
veterans and workers.
Robert Kennedy once said if you make some contribution to
someone else to improve their life, that is what you should be
doing. What will history say about us on this issue? Did we the
people help to promote the general welfare of the homeless?
What steps did we take to stop the violence?
America's homeless deserve the same respect and dignity
that we share sitting here today. I look forward to the
testimony of our witnesses as we develop a record in this
Committee to take action to protect America's vulnerable.
With that, let me first turn to my colleague,
Representative Eddie Bernice Johnson. I had the opportunity to
serve with her when I was in the House of Representatives. She
is a passionate leader on issues of people who need our help.
She has been the voice of many people who otherwise would not
be heard in the chambers of the Congress. It is an honor to
have her before our Committee.
STATEMENT OF HON. EDDIE BERNICE JOHNSON, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Representative Johnson. Thank you very much, Senator
Cardin, and thank you for inviting me to testify on this
important issue.
Each year there are hundreds of individuals who are targets
of violent crime based solely on their appearance, means, or
lifestyle. Each and every violent crime is traumatic. However,
hate crimes are not only meant to physically harm the victim,
but degrade all individuals of similar identity. They instill a
pervasive sense of fear within that community.
Over the past few years, there has been a great deal of
attention given to enhanced enforcement of hate crimes.
Unfortunately, there has been a significant omission during
this debate. One of the most frequent but least discussed
categories of hate crimes are those which target the homeless.
Between 1999 and 2010, there were more than 1,000 bias-
motivated attacks committed against the homeless; 291 of these
attacks were homicides. That is more than twice the number of
homicides committed in all other hate group categories
combined.
The thread that holds all these crimes together is the
sheer violence and disregard for human life. In April of last
year, a homeless woman confined to a wheelchair was repeatedly
raped in Seattle, Washington. The man who raped her told her,
``I can rape you and get away with it...You're homeless? No one
cares about you.''
Last year in my home State of Texas, a 41-year-old homeless
man was sitting on a bench near the University of Texas at El
Paso. Four unknown males assaulted him and lit him on fire. He
survived but lives with serious burns. This was one of six non-
fatal attacks that involved setting a homeless individual on
fire. These six attacks occurred in 2009 alone.
In 2009, there were 43 homeless men and women who were
murdered because they were homeless; 90 percent of those deaths
were caused by stabbing, blunt force, or strangulation.
A misconception is that these attacks happen to belligerent
bums. However, many of these individuals were sought out by
their attackers. Some victims never even spoke to their
attacker before they were killed.
In the 110th Congress, I introduced the Hate Crimes Against
the Homeless Statistics Act. This bill was reintroduced in this
Congress along with a Senate companion bill which is sponsored
by Senators Cardin and Collins. The sole purpose of this bill
is to direct the FBI to add the category of homelessness to
their hate crimes statistics.
The National Coalition for the Homeless has done an
outstanding job collecting data on homeless hate crimes over
the past 10 years. However, Federal recognition is essential in
order to understand and curb this type of violence.
The Federal Government has fallen behind the States on this
issue. Currently, there are four States who already recognize
homelessness as a category of hate crime. Several more have
legislation pending, and this is not just in Democrat
politically run States. Florida had a Republican-elected
Governor and a Republican legislature at time their homeless
hate crimes bill was signed into law.
If Congress continues to not take a stance on this issue,
we send the message that we are willing to look the other way.
Treating homeless individuals rudely or inhumanely is seen as
acceptable by far too many Americans. It is the one group where
it is still acceptable in most circles to disparage. How do we
end this if even Congress is unwilling to treat these
individuals equally?
Senator Cardin, I thank you for being a true leader on this
issue and for allowing me to testify in front of this Committee
today.
[The prepared statement of Ms. Johnson appear as a
submission for the record.]
Senator Cardin. Well, Congresswoman Johnson, thank you for
your testimony, but more importantly, thank you for your
leadership on this issue in the Congress, and I am glad you
pointed out that this is bipartisan legislation.
We do have a letter that I am going to ask unanimous
consent to be made part of the record by Congresswoman Ros-
Lehtinen in support of this legislation, and from Senator
Collins, who cosponsored the bill with me, we have a letter
from Senator Collins in support of the legislation that would
require the FBI to collect information concerning attacks
against the homeless. Without objection, those two letters will
be made part of the record.
[The letters appear as a submission for the record.]
Senator Cardin. I want to share with you a blurb that I
found in a popular men's magazine that is absolutely appalling.
It reads, ``Hunt the homeless. Kill one for fun. We are 87
percent sure it is legal.''
Now, has society become so desensitized to the
glorification of violence that an ad like that could appear in
a magazine in our country? To me this is just shocking that
something like this could happen in the United States.
You mentioned what happened in Texas. It was not one
episode; it was several episodes. The same thing has happened
in Maryland. I would hope that we were beyond this, but until
we get the information as to whether ads like this are having
impact, it is difficult, I think, for us to develop a strategy
to deal with it. That is the reason I introduced the
legislation. I note your concerns. I think we need to develop a
workable strategy to protect all our vulnerable citizens, and
the homeless, just because they are homeless, are being
victimized, and that needs to stop in America.
Thank you for your testimony. I appreciate it very much and
look forward to working with you.
Representative Johnson. Thank you.
Senator Cardin. We will now turn to our second panel, and I
will introduce them in the order in which they will be
speaking, and you all can come forward and take your seats.
First we have Professor Brian Levin, an associate professor
of criminal justice and director of the Center for the Study of
Hate and Extremism at California State University, San
Bernardino, where he specializes in the analysis of hate
crimes, domestic and international terrorism, and related legal
issues. He is a leading academic expert on violence against the
homeless and has contributed to the National Coalition for the
Homeless 2010 report entitled, ``Hate Crimes Against the
Homeless: America's Growing Tide of Violence.''
We have Richard Wierzbicki, who is the commander in the
Department of Law Enforcement at the Broward County Sheriff's
Department in Fort Lauderdale, Florida. Since September 2008,
he has headed the Broward Sheriff's Hate Crimes Task Force. He
testified this year in front of the Florida House and Senate
subcommittees in favor of adding the homeless to the Florida's
hate crimes statute.
We have Simone Manning-Moon, who is the sister of Norris
Gaynor, who died at the age of 45 after he was brutally
attacked and killed by three teenagers by bats in Fort
Lauderdale in 2006. This incident was caught on a surveillance
camera on the campus of Florida Atlantic University. The three
offenders who were involved in the beatings of two other
homeless men received sentences ranging from 15 years to life
in prison.
We have David Muhlhausen, an expert on the criminal justice
programs at the Heritage Foundation. He has testified
frequently before Congress on the efficiency and effectiveness
of law enforcement grants administered by the United States
Department of Justice. Mr. Muhlhausen joined Heritage in 1999
after serving on the Senate Judiciary Committee, which is
certainly a major part of your resume, where he specialized in
crime and juvenile justice policies, but perhaps the most
important part of his resume, he has a doctorate in public
policy from the University of Maryland, Baltimore County, and a
bachelor's degree in political science and justice studies from
Frostburg State University.
Erik Luna is a professor of law and an alumni faculty
fellow at the Washington and Lee University. Upon graduation
from law school, Professor Luna was a prosecutor in the State
San Diego District Attorney's office. He has served as the
senior Fulbright scholar to New Zealand, where he taught at the
Victoria University Law School and conducted research on
sentencing alternatives. Professor Luna graduated summa cum
laude from the University of Southern California, received his
J.D. with honors from Stanford Law School, where he was editor
of the Stanford Law Review.
We will start with Mr. Levin, Professor Levin.
STATEMENT OF BRIAN H. LEVIN, PROFESSOR, CALIFORNIA STATE
UNIVERSITY, SAN BERNARDINO, SAN BERNARDINO, CALIFORNIA
Mr. Levin. My name is Professor Brian Levin, and I am
director of the nonpartisan Center for the Study of Hate and
Extremism at California State University, San Bernardino, where
I teach in the Department of Criminal Justice. And let me just
add I am a full professor, if I may. While I am here in that
capacity, I would also like to note that I serve as an unpaid
independent adviser to the National Coalition for the Homeless.
I want to personally thank Chairman Benjamin L. Cardin, Ranking
Member Lindsey Graham, Chairman Arlen Specter, and the other
members of the Committee for the privilege of testifying on the
scourge of violence directed against homeless Americans. I have
analyzed hate crime for almost 25 years, written extensively on
the topic, compiled national hate crime statistical surveys,
testified before the House, authored Supreme Court briefs,
trained law enforcement, and have advised policymakers
throughout North America and Europe.
The National Coalition for the Homeless has worked
tirelessly for the last 28 years to not only end homelessness
but to ensure broad protection of homeless individuals. Since
1999 the NCH has monitored and recorded acts of violence
against our country's homeless.
My testimony today in support of Senate bill 1765, the Hate
Crimes Against the Homeless Statistics Act,'' will address
issues relating to the inclusion of homeless status as a
category in hate crime statutes, but specifically its inclusion
in Federal data collection undertaken pursuant to the Hate
Crime Statistics Act. Access to this type of objective official
data is crucial for a society to assess the scope of
criminality, implement policies, allocate resources, and craft
legislation. From the onset it is important to consider that
over the last three decades, both penalty enhancement laws and
specifically data collection statutes have been expanded to
cover additional group categories as new information arose to
support such inclusion. It is my hope that the outline I
provide today regarding the characteristics and prevalence of
anti-homeless hate violence will correct a glaring error in
current Federal efforts.
The homeless face a rate of victimization that far exceeds
that of other groups. Indeed, it is probably among the highest
in the Western industrialized world. The more reliable hate
crime statistics arising from homicide data and victimization
studies indicate that we have a vulnerable population here, not
just for crime in general, but for hate violence as well.
Two key questions need to be addressed regarding the issue
of discriminatory violence against the homeless. First, does
the actual level of bias violence against the homeless justify
a statutory change? And, second, does the category of
homelessness fit the traditional framework of hate crime
legislation and share material similarities with currently
covered groups?
It must be stressed that the modest data collection
proposal presented here today does not increase punishment or
change broad policies. Because we already have an operational
national framework for hate crime data collection, it does not
require us to create an additional bureaucracy. What it does
allow us to do is get essential information about a
qualitatively distinct form of crime that significantly affects
a distinct class of victims.
Emma Lazarus' poem, ``The New Colossus,'' is inscribed on
our Statue of Liberty. It says: ``
Give me your tired, your poor, your huddled masses yearning
to breathe free, The wretched refuse of your teeming shore.
Send these, the homeless, the tempest-tost to me. I lift my
lamp beside the golden door!''
However, today, unfortunately, studies indicate that
America is not necessarily a hospitable place for our homeless
citizens. Studies and surveys repeatedly indicate an annual
risk of criminal victimization as high as 66 to 82 percent, as
I said, about the highest for any subgroup in the Western
world.
One thing that I think is key here--and I believe it is
important to differentiate--is that we are talking about hate
violence. We have excluded in this research acts, of insurance
fraud where homeless people were targeted for death in Los
Angeles, or, for instance, a case in New York, where we saw
homeless people being kidnapped to deal drugs for notorious
drug dealers.
What we have seen over the last decade is a clear and
disturbing pattern that shows the homeless population face an
additional risk of discriminatory violence. These unprovoked
hate attacks primarily by domiciled young assailants are not
motivated by robbery, personal disputes, or drug dealing. These
bias motivated attacks have claimed the lives of over 288 men
and women nationally over the last decede. It is the homicide
data that is regarded as the most reliable and useful, and I
think we have to separate it out from other data and, indeed,
compare apples to apples and oranges to oranges.
In closing, I would just like to say this: I can only
marvel at how proud my departed refugee Russian immigrant
grandmother and World War II era POW father would be to see the
country they loved so very much--and indeed my son who I
brought here from California, to see the majesty of your
chamber--working to extend the promise of Emma Lazarus' vision
to embrace yet a new generation of Americans who, like my
grandmother and my POW father who fought the Nazis, who like
them need protection from the scourge of unrestrained violent
prejudice.
I want to thank you so much. I am so honored to be here and
to answer any questions that you may have in the brief time
that we have here today.
[The prepared statement of Mr. Levin appear as a submission
for the record.]
Senator Cardin. Professor Levin, thank you for being here.
It is nice to have your son with us here also today.
I think we will just proceed down the witness table, so
next we will hear from Simone Manning-Moon.
STATEMENT OF SIMONE MANNING-MOON, DECATUR, GEORGIA
Ms. Manning-Moon. Thank you, Senator Cardin. It is an honor
to be here today.
To Honorable Members of the Committee, my name is Simone
Manning-Moon. I extend warm greetings and my gratitude for the
opportunity to speak before you today. I also bring greetings
from my parents, Sam and Georgia Gaynor, who still miss and
grieve for their son Norris--my brother. It is a tragic twist
of irony that my big brother wanted only to live a rather
anonymous existence and mind his own business, and yet we are
here today before this esteemed Committee in our Nation's
capitol to discuss him and to put a name and a face to him--or
rather, to all of those who find themselves in my brother's
position, claiming the sky as their temporary ceiling.
Despite all that would come later, my parents demonstrated
their love for us in the most supreme way. Though not related
by blood, we were both adopted when my parents had so much love
to give and wanted children to give it to. We knew from an
early age that we were adopted and loved immeasurably. We grew
up under the tutelage of a United States Chief Petty Officer in
the Navy and a mother who imparted a family structure which
included study habits, responsibility for household chores, and
a respect for those in authority. We were, in effect, no
different than I suspect many of you who underwent the same
upbringing. This with perhaps one exception: my brother was
troubled. No one could quite pinpoint the issue. He was often
hyperactive, sometimes angry, and seemed to look for something
he did not have, and yet he expressed satisfaction with his
surroundings. I took my cues--and much advice--from him
oftentimes. Once my parents sat us down and earnestly explained
the circumstances of how we came to be their children, going so
far as to offer to help us if we wanted to find our ``real''
parents. I remember staring at my brother Norris when he
declared his logic at the table: Why would we look for parents
when we already had them? When those ``real'' parents gave us
up? He was not interested. And because he was my big brother,
nor was I. We were raised with high expectations, a low
tolerance for things unproductive and considered foolish. And,
therefore, it was no surprise when, upon my brother's high
school graduation, he was expected to move in the direction of
manhood and self-sufficiency. After all, this was our family
mantra.
At that point, Norris' tumultuous journey began. He faced
many things: his service in the United States Army,
incarceration, drug abuse, the realization that he was not
mentally healthy, and his struggles to find himself. For as
many years as he was homeless, he was a contributing,
upstanding member of society. He worked every day, kept himself
in great physical condition, and otherwise lived what you may
call a normal existence. But he was not well. Eventually he
came to see that. I suppose I should be grateful that he
realized many things before wooden bats and rake handles
snuffed out his life.
Norris Jay Gaynor. Not ``the homeless guy who was murdered
that night;'' not ``the one they beat to death;'' not ``that
homeless fatality.'' I implore you to actually say his name:
Norris Gaynor. Son, brother, uncle. The one upon whom I called
on for counsel and who called me from pay phones so that he
could give me advice.
I beg your pardon.
The son my parents referred to as not ``homeless, but
simply far from home.'' My brother Norris who, when our younger
brother Jerome died of liver cancer many years ago when we were
12 and 13, huddled in a corner with me to talk about how much
we were going to miss him.
Norris the artist. Norris the political news junkie in his
later years, who knew more about local, State, and Federal
politics than I did, and who missed, because of some notion
that it was OK for people to beat and kill those on the street,
what would have been the most important Presidential election
of his lifetime--by mere months. He surely would have continued
to discuss it to this day and apply his honed critical thinking
skills to the State of Washington in 2010. How ironic that he
of all people is not here to witness the current state of
affairs.
His name is Norris Jay Gaynor. He was born in 1960. He was
raised in a fine family. He had his problems, but he manned up
and declared that he would not be a burden on anyone. When he
learned later in his life that due to a variety of
circumstances he could apply for Social Security benefits, he
refused. ``I can't do that,'' he would say. ``I'm physically
able to take care of myself.'' This is the person those men
killed that night. This is the so-called bum. And the supreme
irony? The taxpayers are now taking care of his bat-wielding
murderers. And make no mistake: He was murdered because he was
homeless. He was attacked because he was asleep on a park
bench, minding his own business.
To the direct point of the proposed legislation we are
discussing today, he was murdered because people resented the
homeless and thought that they could continue to prey on them
and get away with it.
I thank you for your time.
[The prepared statement of Ms. Manning-Moon appear as a
submission for the record.]
Senator Cardin. Well, let me thank you for your testimony.
We hear statistics and it is important to understand that every
one of those statistics is a person and a family. Norris Jay
Gaynor was a person, a brother, a son, and we thank you for
sharing your relationship with him so that we understand that
we are not just talking about one person; we are talking about
a family, and many families in this country.
Professor Erik Luna.
STATEMENT OF ERIK LUNA, PROFESSOR OF LAW, WASHINGTON AND LEE
UNIVERSITY SCHOOL OF LAW, LEXINGTON, VIRGINIA
Mr. Luna. Thank you very much, Senator Cardin----
Senator Cardin. I think your mic is not on.
Mr. Luna. Got it. Thank you. Thank you, Senator Cardin.
Thank you for the opportunity to come and speak today on this
very important topic.
The plight of America's homeless is truly heartbreaking and
has only become worse in recent years as a result of the
Nation's financial crisis and the rise of home foreclosures and
evictions. The happenstance that has left many people homeless
underscores the proverb ``There but for the grace of God go
I.'' And the compassion and tireless efforts of advocates for
the homeless, including those in this room, confirm the
fundamentally good-hearted nature of the American people.
Against this background, it is hard not to be flabbergasted
and repulsed by the crimes of violence committed against the
homeless, as described in media accounts and in the recent
report by the National Coalition for the Homeless. The same can
be said of the brutal acts that propelled the federalization of
so-called hate crimes: the murders of Matthew Shepard in
Wyoming and James Byrd, Jr., in Texas.
These events greatly disturbed conscientious citizens
across the Nation. No decent American could argue against the
investigation, prosecution, conviction, and punishment of those
who commit such crimes. And, of course, that was never a
question before this august body, nor was it a genuine issue
among decent scholars, policy analysts, and the general public.
Instead, the problem was the alleged necessity and the
potential consequences and the ultimate constitutionality of
the Hate Crimes Prevention Act.
Now, that statute is not directly at issue today. Instead,
as has been noted, the hearing is concerned with whether to
amend a 20-year-old, the Hate Crime Statistics Act, to include
``homeless status'' as a protected class for purposes of
Federal law enforcement's tracking of hate crimes across the
Nation.
Here I would like to briefly discuss the collection of hate
crime statistics, including hate crimes against the homeless,
and the justification for federalizing hate crimes, including
those against the homeless.
The first issue goes to the heart of the bill before the
Senate and is a question with regards to hate crime statistics
in general. The second issue, though not directly before this
body, looms over this entire hearing.
The guidelines promulgated pursuant to the Hate Crime
Statistics Act described a hate crime as a ``criminal offense
committed against a person or property which is motivated, in
whole or in part, by the offender's bias.'' In turn, bias is
defined as a ``preformed negative opinion or attitude toward a
group of persons based on their race, religion, disability,
sexual orientation, or ethnicity/national origin.'' The
guidelines then provide a series of criteria that might support
a finding of bias, and many of these items seem commonsensical.
Others are less obvious or might raise legal questions if used
at trial, such as whether a ``substantial portion of the
community where the crime occurred perceived that the incident
was motivated by bias.'' It is hard to imagine the evidentiary
basis, let alone constitutional argument, for admitting
testimony or documents about popular sentiment in order to
prove that a crime has been committed.
The guidelines also provide vignettes intended to
demonstrate the appropriate classification of hate crimes. The
vignettes would raise some serious constitutional issues if
they involved an actual hate crime prosecution in Federal
courts, but that is not actually what is going on here.
Consistent with the Congressional mandate, the FBI guidelines
make clear that their purpose is for data collection only.
And this does not guarantee accurate classification.
Offenders have all sorts of motivations, conscious and
unconscious, including cynical beliefs about those who are in
some way different from themselves. When hate crimes turn on
one-word slurs or non-verbal expressions, the classifier is
placed in the position of guesstimating the level of bias in
the sometimes murky, often adrenalin-filled circumstances of a
criminal episode. The standard of proof vaguely resembles
``probable cause,'' the amount of evidence needed to conduct a
search and seizure, for example, rather than the
constitutionally mandated standard for conviction at trial.
But again, this is of no constitutional moment when the
goal is categorization of statistics rather than condemnation
of defendants. And the inherent limitations of these statistics
are--or should be--understood and acknowledged by policymakers;
and as long as any errors in classification are random, the
data provided under the Hate Crime Statistics Act give a
reasonable overall picture with all the caveats attached.
A far larger problem lies with the data provided by
advocacy groups, who use disparate or loose standards, or no
real standards at all, in gathering and presenting their data.
Some groups count as hate crimes all reports, even if they do
not amount to a criminal offense or only involve bias-motivated
comments, and regardless of the source of information.
Unfortunately, some of these problems appear to exist in the
National Coalition for the Homeless' recent report, which is
otherwise very laudable, on crimes against the homeless.
There seems to be a conflation of two potentially
overlapping but importantly distinct concepts: crimes against
the homeless and hate crimes against the homeless.
The vignettes in the report often share two common things:
they are extremely sad, and I want to emphasize that; but they
are often based on limited or no hard facts indicating that the
incidents were motivated by bias against the homeless; or in
some cases that a crime had even been committed. Instead, the
incidents are often loaded with speculation or honest
acknowledgments that the facts and motives remain unclear.
In fact, one incident in the report listed as a non-lethal
attack did not involve an attack at all, but instead detailed
an admittedly repulsive Internet posting that in and of itself
could never be the basis for a prosecution under the
Constitution.
Now, to be clear, the authors of the report may have
additional information, evidence that would lead a reasonable
and prudent person to conclude that the episodes were not only
crimes but were hate crimes and based on criminal motivate, in
whole or in part. But this information is not always obvious
from the report.
Let me also be clear that I do not believe that the well-
intentioned advocates for the homeless are trying to mislead
anyone, and I assume the report is aimed at raising public
awareness rather than raising constitutionally dubious
legislation. But I do believe that Congress will eventually be
called to add homeless status to the Hate Crimes Prevention
Act, and for all I know, the lobbying process may have already
begun. For this reason, I think all of the concerns that were
raised with regards to federalizing hate crimes in general
should be considered, not with regards to this particular act.
Now, I know I am running short on time, so I will not go
through those objections. Instead, let me just briefly mention
what I believe would be somewhat of a surprise. I have no per
se objection to homeless status being added to group
characteristics in the Hate Crime Statistics Act. Indeed, I
generally and strongly encourage the collection and
dissemination of empirical data as a means to inform public
judgments on criminal justice policy. In fact, I believe the
bill at issue today does not go far enough to ensure full and
accurate information about the commission of and response to
crimes motivated by legislatively identified animus or bias.
What is missing from our collective knowledge is whether the
Hate Crimes Prevention Act, last year's legislation, is
justified by the failure of State and local officials to
prosecute crimes of violence that fall within the definition of
a hate crime.
To remedy this sort of information gap, Senator Hatch has
previously proposed a study to look into the question of State
default. Maybe this study would show a trend of under-
enforcement by State and local prosecutors and insufficient
punishment for crimes of violence, evincing a need for some
type of Federal action. Or maybe it would affirmatively
demonstrate that State and local officials are assiduously
fulfilling their obligations, that bias-motivated offenders are
receiving just and effective punishment, and that the Hate
Crimes Prevention Act is entirely unnecessary. Either way, the
American people and their elected representatives would be in a
better position to evaluate this contentious area of criminal
justice policy.
Again, thank you for the opportunity to speak today, and I
look forward to answering any questions that you might have.
[The prepared statement of Mr. Luna appear as a submission
for the record.]
Senator Cardin. Professor Luna, thank you very much for
your testimony.
We will now turn to Commander Richard Wierzbicki.
STATEMENT OF RICHARD WIERZBICKI, COMMANDER, HATE CRIMES/ANTI-
BIAS TASK FORCE, BROWARD COUNTY SHERIFF'S OFFICE, FORT
LAUDERDALE, FLORIDA
Mr. Wierzbicki. Thank you, Senator. I am honored to testify
today on behalf of the Broward County Florida Sheriff's Office.
Sheriff Al Lamberti sends his regards and has submitted a
statement for the hearing record.
I am a longstanding member of the Nation's law enforcement
community with over 32 years of public service and can attest
to our profession's interest in advancing strategies that
enhance the prevention, investigation, and prosecution of
crimes committed against the homeless population, including
crimes motivated by bias. Rigorous and widespread collection,
reporting, and analysis of bias-motivated crime data is one
such solution. That is what the Hate Crimes Against the
Homeless Statistics Act, introduced by yourself and Senator
Collins, would accomplish. That is why the Broward County
Sheriff's Office, the largest accredited Sheriff's Office in
the United States, fully supports this legislation.
As a law enforcement officer, I have dealt with crimes
committed against homeless people motivated by bias. For
example, James Cunningham, a 54-year-old homeless man, was
attacked in Pompano Beach, Florida, in October 2009. The attack
was recorded on video and posted on YouTube by one of the
offenders. The video showed two attackers shoving, taunting,
and dragging Mr. Cunningham down a Pompano Beach street by the
ankles as two other men held his arms and laughed.
This dramatic incident reflects the intensity of bias that
some hold against people experiencing homelessness. Many other
lower-order incidents against homeless people occur routinely,
but escape attention in part because the victims may not report
them out of a belief that law enforcement officers will not
investigate them sufficiently, or equally troubling, because
members of the general population have come to accept
victimization as an inevitable consequence of homelessness.
Use of crime statistics generally is a staple of effective
law enforcement practice. The availability of data about bias-
motivated crimes is instrumental in inspiring community action
to protect various population groups subjected to bias and is
critical to law enforcement agencies for developing plans of
action, deploying resources, and measuring our progress.
Take our experience in Broward County, Florida. I led the
Hate Crimes/Anti-Bias Task Force created in 2008 by Sheriff
Lamberti as a direct response to data in the Florida Attorney
General's annual hate crimes report, which indicated that our
county, Broward County, led the State in reported hate crimes
and has for several years. The data told us where the crimes
were occurring, who was being targeted, and why they were being
attacked. Based on the data, we were then able to decide how
and where to deploy resources to combat hate. For example, the
data revealed that several houses of worship were vandalized
with offensive symbols associated with hate. We responded in
part by co-hosting and implementing a ``Keeping your Religious
Institution Safe'' seminar for clergy and congregation members
alike.
Regrettably, our Attorney General's hate crimes report--no
different than similar reports in many other States--did not
tell us anything about bias-motivated crimes against the
homeless population because such data is not collected as part
of uniform crime reporting, even though those of us who have
worked the beat know full well that such crimes occur. By
lacking such data, our task force simply could not plan a
meaningful response to bias-motivated crimes against our large
homeless population.
The true extent of bias-motivated crimes against the
homeless population will never be known if we do not achieve
multi-State reporting of such crimes through the existing
national hate crime data collection and reporting system.
Passage of the Hate Crimes Against the Homeless Statistics Act
would remedy these gaps in information and consequent
deficiencies in law enforcement practice.
From an operations standpoint, I foresee absolutely no
difficulty arising from the inclusion of the homeless
population as a covered group by the Federal Hate Crimes
Statistics Act. Further, the addition of the homeless
population to the Hate Crimes Statistics Act will in no way
impede efforts to collect and report data on bias-motivated
crimes committed against currently covered groups.
In conclusion, it is my strong conviction that it must
become standard practice for all law enforcement agencies to
vigorously collect data on the number and types of incidents of
bias-motivated crimes against homeless victims. When the
homeless population is left out of national hate crime data
collection and reporting, we fail in our responsibility to
protect all Americans equally.
Thank you.
[The prepared statement of Mr. Wierzbicki appear as a
submission for the record.]
Senator Cardin. Thank you very much for your testimony.
At this point I would ask unanimous consent to place in the
record a statement from Al Lamberti, the Broward County
Sheriff's Office, and from Governor O'Malley of Maryland, and a
statement from the National Law Center of the Homeless and
Poverty, all in support of the legislation that has been
referred to.
[The statements appear as a submission for the record.]
Senator Cardin. Thank you again for your testimony.
Mr. Muhlhausen.
STATEMENT OF DAVID B. MUHLHAUSEN, PH.D., RESEARCH FELLOW IN
EMPIRICAL POLICY ANALYSIS, CENTER FOR DATA ANALYSIS, THE
HERITAGE FOUNDATION, WASHINGTON, D.C.
Mr. Muhlhausen. Thank you. My name is David Muhlhausen. I
am research fellow in the Center for Data Analysis at the
Heritage Foundation. I thank Chairman Cardin, Ranking Member
Graham, and the rest of the Committee for the opportunity to
testify today about crimes against the homeless. The views I
express in my testimony are my own and should not be construed
as representing any official position of The Heritage
Foundation.
My spoken testimony will concentrate on two points.
My first point is that while every case of a violent act
committed against an innocent homeless person is tragic and
should be prosecuted to the fullest extent of the law, the
prevalence of these crimes does not rise to a level that
requires formal data collection by the Federal Government.
According to a recent report by the National Coalition for
the Homeless, 2009 was the deadliest year in a decade for the
murder of homeless persons by housed or domiciled individuals.
By the coalition's own count, there were only 43 of these
homicides in 2009. To properly understand the prevalence of
homeless murders, we need to present the 43 murders as a
percentage of all murders recorded by the Federal Bureau of
Investigation.
In 2009, the FBI counted 15,241 murders in the United
States. The 43 murders counted by the National Coalition for
the Homeless represents 0.28 percent of all murders recorded by
the FBI. Conversely, all other murders accounted for 99.72
percent of the total. Needless to say, the number of murders of
the homeless by domiciled individuals is a minuscule fraction
of total murders.
A second way of putting the number of homeless murders in
perspective is to express it as a rate per 100,000 homeless
persons. The United States Department of Housing and Urban
Development estimated that there were over 643,000 homeless
individuals in a single point in time in 2009. The entire
population of the United States was over 307 million people.
Based on these populations figures, the national murder rate of
the homeless by domiciled individuals is 6.7 incidents per
100,000 homeless persons. The murder rate for the national
population was five incidents per 100,000 residents. While the
homeless murder rate is higher than the national rate, the
difference is neither startling nor a justification for the
Federal Government to begin formally collecting statistics on
these crimes.
Other subpopulations, like black males, face higher murder
rates. While the National Coalition for the Homeless
interpreted its data as presenting shocking, alarming, and
disturbing findings, it produces no such startling numbers to
support its goal of persuading the Federal Government to
collect data on these crimes.
My second point is that the Hate Crimes Against the
Homeless Statistics Act of 2009 is unnecessary. When Congress
considers the need for collecting data on any social
phenomenon, the nature of the evidence presented to Congress
should be instrumental to the decisionmaking process. A wrong
assessment of the evidence can lead Congress to waste valuable
resources. An objective and fair analysis of the data presented
by the coalition simply does not provide support for the Hate
Crimes Against the Homeless Statistics Act. Nevertheless,
crimes against the homeless, like all other ordinary street
crimes, should be prosecuted to the full extent of the law by
State and local governments.
While some may argue that the lack of reliable and
objective data on the number of crimes committed against the
homeless by domiciled individuals is justification enough for
Federal intervention, such logic leads the Federal Government
down the unending road of collecting data on any perceived
social problem, whether or not the problem warrants attention
by the Federal Government. The Hate Crimes Against the Homeless
Statistics Act of 2009 is unnecessary.
Thank you.
[The prepared statement of Mr. Muhlhausen appear as a
submission for the record.]
Senator Cardin. Thank you very much for your testimony.
Mr. Muhlhausen, I was listening to your testimony, and I
thought you were testifying in support of my bill at some
point. It seems like we need to have good information to make
decisions. I appreciate you mentioning the statistics from the
advocacy community. The issue is whether we have the same
numbers as to the number of people who are being victimized
because they are homeless versus the other statistical
information we have about violent crime, which is collected in
a different manner. It seems to me we are comparing apples to
oranges, and the purpose of this bill, as I pointed out, is to
get uniform information.
And, second, it seemed to me that your testimony at times
drifted toward your concern about the hate crimes law itself as
to whether there should be a separate identification of crimes
that are committed because of a person's protected status, and
that debate has been one that we have had in Congress, and the
majority of the Congress has acted to say that, yes, every
violent act, every criminal act should be held accountable
under our criminal justice system. Every single one. But when a
person is victimized solely because of their race or solely
because of their gender or their gender identity or their
disability, that presents an inherent problem in our country
that needs to be dealt with and needs to be identified and
cannot go unchallenged. And that to me was the reason why the
majority in Congress passed the hate crimes, signed into law,
and we have amended it over time.
Now, that is not the debate today. The debate today--and I
want to get, if I could, into Mr. Wierzbicki--is to whether we
have adequate information in order to make good judgments. And
I was impressed by your testimony that it would be very little
additional burden to your agency to identify this information
for the FBI data collections.
Mr. Wierzbicki. Yes, Senator. All it amounts to is checking
under a different box. We would add the homeless into the
category, check a box, and change the software, and it is
pretty much a done deal.
Senator Cardin. Now, I also applaud your efforts with the
Hate Crimes/Anti-Bias Task Force. You have recognized that you
have an issue that you need to deal with in Broward County. You
have already identified the specific case of Mr. Cunningham,
but I take it that you are seeing crimes, violent crimes,
committed against individuals solely because they are homeless.
Mr. Wierzbicki. That is correct.
Senator Cardin. They are not being targeted for robbery;
they are not being targeted for an anger assault. They are
being targeted because they are perceived by the attacker as a
worthy victim because they are homeless.
Mr. Wierzbicki. The beatings in Broward County, the
attackers, it was almost a sport to them, and the attacks were
very violent. And I know research shows that a lot of the
attacks are more violent because the attackers view them as
subhuman and they have no place to retreat. So that is why
Sheriff Lamberti decided we need to do the right thing and
support the homeless inclusion into the Florida hate crimes
statute.
Senator Cardin. And, of course, it is underscored by the
type of ads that you see in this magazine, you know, announcing
that there would be a National Hobo Convention, that there will
be floats, music, a vat of stew, and, yes, hobos, kill one for
fun. Is that like you have a right to do that?
Mr. Wierzbicki. Yes, it is unfortunate that we have sunk
that low in our society. But one of the other things I
mentioned when I was in Tallahassee, somebody came up to me and
he said, ``Have you heard the new Jacksonville radio show? '' I
said, ``What are you talking about? '' He said, ``It is called
bum on bum.'' And the actual radio producers go out on the
streets of Jacksonville and encourage two homeless men to fight
each other, and I think the winner gets some kind of prize.
Senator Cardin. Well, I think in order to counter the
strategy, there are a lot of things we need to do, but we also
need to have accurate information.
Professor Luna, I was impressed by your testimony, and we
had a hearing before the Judiciary Committee, I think it was
just 2 weeks ago, dealing with rape and the reporting of rape
crimes in America, and that we did not have consistent
information as to the number of domestic violence cases that
are taking place in this country. And one of the reasons that
we did not have uniform definitions and we had the discretion
of the investigating law enforcement officer, and the general
view there was that it would be good to have that information.
When the FBI is collecting data under the hate crimes, we
get uniform reporting. It is not perfect, but it is certainly
the best we have. So as I understand your testimony, having the
information would be useful in developing strategies.
Mr. Luna. Agreed. I have absolutely nothing against this
bill itself. And I understand that you are not interested in
getting into the discussion about what occurred last year, and
if and when that point comes, I am sure there will be lots of
testimony about that, whether to add it to the Hate Crimes Act
that currently exists.
I totally agree that it is a good thing to have that kind
of information. It is a good thing to have some uniform
standards. And my wish would be that the advocates, who, again,
are tireless and they are doing--they are doing God's work in
working for the homeless, no doubt. But I wish that they would
be using the type of standards in reporting and identifying
crimes that are utilized by the FBI through its delegated
authority. And going through the report, as I said before,
there are--each of these incidents is--it is disgusting. There
is no doubt about that. But there is a question: Are these
actual hate crimes as defined either under the Hate Crime
Statistics Act or under the bill, the law that was passed last
year. And there are some real doubts about that.
And I also think that it would be important--again, I
mentioned Senator Hatch's--he has been a long time asking for
this. And I am not interested in it because I have a political
axe to grind. I have no political axe to grind. But I would
like to know whether or not the local and State officials are,
in fact, defaulting on their obligation to prosecute these
crimes. And from what I see, in both hate crimes reports, aside
from the homeless, and also the reports presented by the
National Coalition for the Homeless, I see law enforcement
putting effort into this and prosecuting individuals and
investigating it to the extent that they can. If there is a
problem, the problem is that the homeless, and for
understandable reasons, have some concern about presenting this
information to the police. And this bill itself is not going to
do anything to encourage the homeless to report their crimes
if, in fact, they have some fear or if they do not know the
various channels by which to report this information. That I
think would be a good step.
Senator Cardin. Well, I think I am going to leave it at
that. I think we are in agreement that getting reliable
information is important. I do not know the relative accuracy
of the information because we do not have uniform reporting
nationwide, and that is what I would like to see. So I do not
reach a judgment as to the accuracy of the information that has
been presented. But I do know I would feel much more
comfortable, before I am called upon to act, to have that
uniform information that the legislation that Senator Collins
and I have introduced would do.
Mr. Muhlhausen, let me see if I understand. Would you
object to having uniform national information on status
crimes--that is, we will not characterize them as hate crimes
right now, but if we were to ask for uniform information as we
so under the hate crimes statute for victims of racial violence
or religious attacks, and homeless I add to that, do you object
to getting that information done on a national level as
compared to just information about crimes?
Mr. Muhlhausen. Well, in general, I think it is a good
thing to collect information, but one of my questions is that I
doubt that this report that was just issued, I guess, last
month rises to a level to justify Federal legislation; and,
second, that--where do we draw the line? Anytime any group----
Senator Cardin. Let me just stop you for 1 second. I
believe that you would find the statistical information on most
of the status crimes that I have talked about--in other words,
violence based upon race. If you take it on the murder rate,
you would not isolate enough to make it a statistically worthy
venture because that is not the main thrust of the use of the
information. It is to deal with violence against individuals
solely because of race to try to deal with the underlying
problems in our community of racial tensions and violence.
My question to you is: Is it useful to have that
information? Or do you oppose knowing the amount of violent
acts against individuals based upon race, based upon religion,
based upon gender or gender identification?
Mr. Muhlhausen. I do not oppose collecting the basic
information. What I am----
Senator Cardin. Why don't you add homeless to that?
Mr. Muhlhausen. Well, what I am concerned about is that the
data presented--it was presented in a way to suggest there was
a rising tide of violence, and in fact, there is no tide. It
is----
Senator Cardin. We do not know that. I mean, I will go so
far----
Mr. Muhlhausen. Based on the evidence.
Senator Cardin. Well, we do not----
Mr. Muhlhausen. That we have.
Senator Cardin. If you base it upon the information that
has been presented by the advocacy community, then we do have a
rising problem, that there has been an increased amount of
violence, and that it is statistically much higher than other
protected classes, if you accept their information.
I am going to agree with you. I do not know whether that is
accurate relative to the other protected classes or not. That
is what we are trying to find out.
Mr. Muhlhausen. Well, I think a good thing to find out is,
if this bill were to move, how about add Senator Hatch's
recommendation, what Professor Luna talked about, and collect
prosecution information. What is going on? Are these crimes
being prosecuted? Because I think these crimes, when they are
committed, they should be prosecuted.
Senator Cardin. We do not disagree with that, but it
reminds me of people who complain that we should not try to
stop wars because we cannot stop all wars or we should not
fight for human rights because we cannot end all human rights
abuses. I mean, you make progress where you can make progress.
Mr. Muhlhausen. Well, I think the fact is that there are
other segments of society that are probably far more
victimized. I mean, just read the report, and, you know, it is
like----
Senator Cardin. I am for making progress in every area we
can.
Mr. Muhlhausen. Burglars target people with homes. We are
not concerned about that. I mean, what about crimes against
people with homes?
Senator Cardin. We are concerned about that.
Mr. Muhlhausen. We are not collecting statistics on that
necessarily as a hate crime.
Senator Cardin. But we do have uniform statistics on that.
The problem--we do have uniform crime statistics that are
available nationwide. The problem is it is not divided as to
the homeless today. So I take issue with you. I think we do
have good information on burglaries in this country. We do not
on attacks against the homeless. That is the purpose of the
bill, is to get that information. That is why I was trying to
figure out your objections, and you say you do not object to
having good information, you say you do not object to having it
isolated into protected classes. So I am going to leave it at
that because I just interpret from your comments that you want
to be opposed to this bill, which is your right to do it, but I
do not see any rational distinction if you support collecting
information on crimes, if you support collecting information
against people because of their race, et cetera. Then we can
debate whether homeless is important enough or not, and that is
an issue for Congress to make a judgment on. Thank you.
Professor Levin, let me just try to get you engaged in this
discussion, because, you know, one of our principal objectives
is to try to understand the homeless and try to reduce the
number of people that are homeless. What is concerning me is
that we see a lot of military people returning who end up
homeless. We see domestic violence leading to the homeless
population. We see people with addictions becoming homeless.
Is there a trend here that we should be concerned about as
we try to protect the people from becoming homeless, but those
who become homeless, to get the services they need to protect
them not only against violence but to protect their basic
needs?
Mr. Levin. Absolutely, and with unemployment notionally at
9.6 percent and the difficult landscape housing situation,
which has been well documented by this body, the Senate, I
think it is important to recognize that many people who thought
that they would never be homeless including veterans and
families have, in fact, become homeless.
What I am even more astounded by, with all due respect to
my fellow panel members, is how there are those who could be
against merely collecting data.
The other thing that I would like to address is that I
think it would be nice to have some common sense prevail here.
As Professor James Weinstein from Arizona said, Kristallnacht
was more than merely the sum of the assaults, murder and arsons
that took place on the evenings of November 9 and 10, 1938.
These are offenses against a pluralistic democracy. The
criminal law consistently looks at context: the target, the
timing, the location, and the motive of offenses. Indeed,
motive--as the Supreme Court held, by the way, in a case where
I wrote two briefs, Wisconsin v. Mitchell--is something that
the Government can indeed punish by statute, not just with
regard to sentencing. And we have as a society decided that
discrimination, as the United States Supreme Court said in
Roberts v. U.S. Jaycees, is a scourge that the Government has
an obligation to eradicate.
So when we talk about the fact that there are homicides out
there--for instance, there are a lot of homicides committed
against African-American males. However, above and beyond that
risk, there is an additional risk from people who are attacking
individuals for discriminatory urposes and that not only places
victims in great peril, it undermines institutions and
processes of our pluralistic democracy. I pursue this position
for the same reasons that I stood with my conservative friends
of goodwill in support of the Church Arson Prevention Act,
because burning a church in a pluralistic society such as ours
is different than burning a barn. We also have to note that
many of the homicides in our society involve what we would call
routine personal relationships, bar fights and intimate
violence--these are horrible crimes. But the notion of random
attacks by people who select others because of a status
characteristic is something that is also distinctly egregious.
And, indeed, the trial judge in Barclay v. Florida, which went
up to the United States Supreme Court, I think said it quite
well. He said, ``I, like so many American Combat Infantry
Soldiers, walked the battlefields of Europe and saw the
thousands of dead American and German soldiers, and I witnessed
the concentration camps where innocent civilians and children
were murdered in a war of racial and religious extermination.
to attempt to initiate such a war in this country is to
horrible to contemplate. . . .''
So I think when we are looking at data, we have to
understand, for instance, that in our society we look at
context. Robbing a bank is treated under Federal legislation
differently and enumerated differently than robbing a liquor
store because of the additional threat to our eonomic system.
Sexual assault of all kinds is egregious, but sexual
assault of a minor is something that we extend more punishment
to. Similarly, being disorderly outside the Senate building is
treated differently than being disorderly on an airplane.
So it is important to recognize that the criminal law has
consistently throughout our nation's history taken into account
motive, context, offender status, victim status and--
recidivism, for instance. We treat people who commit crimes
more than once differently than we treat first offenders. Here
we already have a group of people who are being horrendously
victimized and face an additional risk on top of that.
I have appended to my testimony a whole list of studies.
Are there limitations geographically? Are there limitations in
a variety of ways? Yes. But in the same way that a smoke alarm
sends out a credible message that something is wrong, I believe
that we have enough data to indicate that there is an
additional problem. And, indeed, the kind of offenders that we
are seeing commit these bias attacks are different and may very
well need a different type of deterrence. For instance,
reckless driving is a threat that is out there, but drunk
driving is as well and treated differently. And as we can see
here--and I would like to say that this does leave out 1 year,
so let us even bump up an estimate for the FBI documented
homicides to maybe 110. We are seeing a scourge, and within
that offenders who resemble very much the types of offenders
who commit the ``mainstream'' traditional hate crimes--thrill
attackers, turf protectors, and hardened bigots.
What I believe we are seeing is a shift from traditional
targets like gays, Jews or African-Americans to others, in part
because the homeless are still regarded as socially acceptable
targets for aggression. And one of the things that the research
has shown, as Professor Robin Williams--emeritus of Cornell,
maintains, is that these offenders act on a printed circuit of
stereotypes. Some like neo-Nazi skinheads seek out and attack
the homeless numerous times, including most recently in
Cincinnati, Ohio. These offenders act on cleansing their
communities, as part of an Aryan notion of purification. We
also see people including many non-skinheads who maybe 20 years
ago would have defended their communities against African-
Americans moving in.
Most commonly, we see a slew of young offenders--indeed,
the majority who are under age 20 who often attack in part for
excitement and peer validation. The notion that we cannot
benefit, particularly our local police departments, our human
relations institutions, and our schools by more data to track
locations, offenders and recidivism, astounds me. When Boston
put forth enforcement of hate crime laws, they, at least for
decades, did not find any recidivism. So I think we should
study this, whether or not we eventually decide to enhance
penalties. But I do think we have to say that by offender and
victim characteristics and, indeed, the way these crimes affect
whole communities, these random stranger-based crimes,
particularly with crimes like this, for example, and there is
much not capture by existing raw numbers: is overkill . It is
not like most crimes where a meaningful act of compliance on
the part of the victim can limit their risk. Here we are seeing
overkill with imprecise weapons of opportunity by lynch mobs of
youth, and we have to collect more data. Indeed, it is the very
fact that the data has some limitations that we need
consistent, uniform law enforcement data.
Last point. Even the New York City Police Department, which
I was a proud member of and am a third-generation former
officer, reclassifies about 10 percent of its initial hate
crimes every year, and I even have the documentation here for
you.
Senator Cardin. Well, thank you, Professor. I appreciate
that.
Let me just again, Ms. Manning-Moon, your brother, Norris
Jay Gaynor, it seems like he made peace with his lifestyle,
that he was proud that he was taking care of himself on the
streets. I am impressed by the fact that he did not want to
take Government benefits because he thought he could take care
of himself. So he did not really ask much from this country.
Ms. Manning-Moon. No, he did not. If he did realize on some
days that he needed help, his innate notion that he should not
rely on the Government or anyone--and he has actually said that
to me many times--took over and won out.
In fact, there was a gentleman who wrote a piece after my
brother's death, an op-ed piece in one of the Florida
newspapers saying that he had befriended my brother over the
past couple of years and that he would sit on the park bench
and talk with him about--and my brother would give opinions
about the museum clock that stopped beating. And at one point
this gentleman tried to accompany my brother to a facility that
could get him some help, and he ended up bolting from that for
what might be a variety of reasons, but, you know, knowing him
the way I do, it would be largely because he wanted to stay
independent. He did not want to be a burden on anyone.
It is ironic that his killers, who fit the profile that
Professor Levin just described, actually had many of, if not
more of, the problems that my brother had in his younger years.
But they somehow never carried the accompanying notion that
they were to man up and try to take care of themselves. That
was a memo that was never received by them, I suppose.
Senator Cardin. Well, your brother had a right, though, to
expect that the country that he lived in, which is the envy of
the world for promoting liberty and justice and opportunity for
all of its citizens, a model democracy, that that country would
do everything in its power to prevent the type of hate activity
that has burdened so many countries over the history of the
world, which the United States--we have had our share. Don't
get me wrong. But we have always responded to it. And we
embrace diversity in America. We do. That is our strength. This
is a Nation of diversity, and we have a responsibility to do
everything we can to keep people safe.
Ms. Manning-Moon. Yes, Senator. Thank you for that. I would
also like to augment Professor Levin's comment specifically
regarding the recidivism or lack of recidivism issue with those
who fall into this category of attacker. The local newspaper
described one of the convicted killers of my brother and
attacker of two others that night as someone whose friends said
routinely went out seeking homeless people to beat and attack.
So this was not uncommon at all, and if we think about what the
value would be of having legislation that would actually help
the law enforcement department in Broward County and elsewhere
track, understand, have on their radar this type of behavior,
imagine what the possibilities would be if that had happened
earlier, that tracking had happened earlier. And Brian Hooks--
is his name--would have been identified earlier as someone who
is prone to this type of behavior.
Senator Cardin. Well, I have opportunities to travel
throughout Maryland frequently and talk to the people of our
State, and I can tell you that they want us at the national
level to do everything we can to reduce the number of homeless,
particularly those who are homeless because of a circumstance
such as domestic violence or the fact that they have come back
from serving our Nation in war and cannot make the transition
back; they need help in order to do that. So they want us to do
that, but they also understand that this Nation needs--its
first priority is to protect its citizens and that when someone
is brutally attacked or put in harm's way solely because they
have no roof over their heads at night, that is not America.
But they want to know the facts in order--they want us to act
upon good information.
Ms. Manning-Moon. Well, I appreciate that, Senator, and I
would just say on a passionate note on behalf of both my father
and myself, I wholeheartedly support the gathering of data to
make a determination. And I must say that anything that I hear
that promotes the concept of not gathering information so that
we can keep a disjointed conclusion is a rather unintelligent
argument. You have to gather the data first in order to come to
your conclusions. This is what I have been taught all my life.
So I wholeheartedly support this legislation.
Senator Cardin. Thank you. Well, I want to thank all five
of our witnesses. I think this has been extremely helpful. I
particularly, again, appreciate Ms. Manning-Moon putting a face
on the issue. When you have national statistics or numbers,
they get lost at times and you realize that they are really
people and families, and that is very important.
Commander Wierzbicki, I appreciate your testimony. To hear
from the law enforcement directly--you are on the front lines.
You are out there battling every day, and we very much
appreciate the efforts that you are making, and please express
our appreciation to your fellow people who are out there,
police officers or the sheriff's department doing the work.
I thank the other three witnesses for their expertise on
this subject and trying to help us figure out what we should do
next. The purpose of this hearing was to gather information
from you all as to what Congress can do to carry out our
principal responsibility of protecting the people of this
Nation. I found the hearing very helpful, and we will decide
next how to proceed, and we thank you for your testimony.
The Committee record will stay open for 1 week in the event
that there are additional questions that are asked by any of
our members. We would ask, if that is the case, that you try to
reply as quickly as possible.
With that, the Subcommittee will stand adjourned. Thank you
all very much.
[Whereupon, at 11:16 a.m., the Subcommittee was adjourned.]
[Additional material is being retained in the Committee
files, see Contents.]
[Questions and answers and submissions for the record
follow.]
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