[Senate Report 115-325]
[From the U.S. Government Publishing Office]
Calendar No. 394
115th Congress } { Report
SENATE
2d Session } { 115-325
======================================================================
PROTECTING RELIGIOUSLY AFFILIATED INSTITUTIONS ACT OF 2018
_______
August 22, 2018.--Ordered to be printed
_______
Mr. Grassley, from the Committee on the Judiciary,
submitted the following
R E P O R T
[To accompany S. 994]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to which was referred the
bill (S. 994) to amend title 18, United States Code, to provide
for the protection of community centers with religious
affiliation, and for other purposes, having considered the
same, reports favorably thereon with an amendment in the nature
of a substitute and recommends that the bill, as amended, do
pass.
CONTENTS
Page
I. Background and Purpose of the Protecting Religiously Affiliated
Institutions Act of 2018.........................................1
II. History of the Bill and Committee Consideration..................3
III. Section-by-Section Summary of the Bill...........................4
IV. Congressional Budget Office Cost Estimate........................5
V. Regulatory Impact Evaluation.....................................6
VI. Conclusion.......................................................6
VII. Changes to Existing Law Made by the Bill, as Reported............6
I. Background and Purpose of the Protecting Religiously Affiliated
Institutions Act of 2018
A. BACKGROUND
In the past two years, numerous threats have been made
against religious institutions, including against the Jewish
and Muslim communities. There were 161 bomb threats made to
Jewish Community Centers in 2017--an increase of 127 percent
from the previous year, and the FBI reported that hate crimes
against Muslims rose 67 percent from 2014 to 2015, the second-
most reported amount of incidents ever.
The House introduced H.R. 1730 on March 23, 2017. On
December 11, 2017, the bill was reported by the Committee on
the Judiciary and passed in the House by a roll call vote of
402-2. The bill was referred to the Senate Committee on the
Judiciary the next day.
B. PURPOSE
The amendments of Title 18 in S. 994 are intended to
protect community centers with religious affiliation and those
spaces leased by religious institutions and increases the
criminal penalty where there is damage to religious real
property.
1. Revision of Section 247
The amendments to Section 247 have three aims. First, to
explicity address the threats made against religious real
property, section 247(a)(2), as it is codified, punishes
whomever ``intentionally obstructs, by force or threat of
force'' any person's free exercise of religious beliefs. The
amendment to section 247(a)(2) would explicity include threats
that intentionally obstruct persons from free exercising of
their religious beliefs by means of threats against religious
real property.
Second, the amendment to section 247(a)(4) imposes a
heightened criminal penalty on a perpetrator regardless of
whether bodily injury or death occurs if the damage or
destruction exceeds $5,000. As codified, section 247(d)(1)-(3)
address punishments for death and bodily injury (with a more
severe penalty if the bodily injury occurs by means of fire or
an explosive). Section 247(d)(4) imposes a maximum prison
sentence of one year. The amendment to Section 247(a)(4) would
increase the maximum prison sentence to three years if the
damage or destruction exceeds $5,000.
Third, the amendment to section 247(f) includes real
property that is ``owned or leased by a non-profit, religiously
affiliated organization.'' As codified, section 247(f) does not
include religious community centers, which received the brunt
of threats that spurred this legislation. This modest expansion
would include facilities like Jewish Community Centers, and
others.
2. The bill does not expand the death penalty
The changes adopted in the manager's substitute amendment
are intended to clarify that a ``threat of force'' under
subparagraph (a)(2) includes ``threats of force'' made against
religious real property. The authors of the substitute
amendment do not intend, and the substitute amendment should
not be read, to expand the permissible application of the death
penalty provision found in subsection (d)(1).
In any event, even if the manager's substitute amendment
were interpreted to expand the permissible application of the
death penalty to threats made against religious real property,
such a penalty would be extremely unlikely. This is because the
Federal Death Penalty Act requires the government to prove
beyond a reasonable doubt that a defendant ``intentionally''
killed a victim or committed offenses while contemplating that
the life of a person be taken. See 18 U.S.C. Sec. 3591
(providing for when sentence of death may be imposed).
More specifically, in federal death penalty proceedings, 18
U.S.C. Sec. Sec. 3591 and 3593 require that the government
prove beyond a reasonable doubt that the defendant:
intentionally killed the victim;
intentionally inflicted serious bodily
injury that resulted in the death of the victim;
intentionally participated in an act,
contemplating that the life of a person would be taken
or intending that lethal force would be used in
connection with a person, other than one of the
participants in the offense, and the victim died as a
direct result of the act; or
intentionally and specifically engaged in an
act of violence, knowing that the act created a grave
risk of death to a person, other than one of the
participants in the offense, such that participation in
the act constituted a reckless disregard for human life
and the victim died as a direct result of the act.
These additional elements mean that a threat against
religious real property, as a standalone offense, would be
extremely unlikely to result in a sentence of death.
3. Threats of force
While the legislation does not specifically define the
term, ``threats of force,'' the substitute amendment should not
be read to encroach on protected speech. Courts have long
distinguished ``true threats'' from protected speech by asking
whether those who hear or read the threat reasonably consider
it to be an ``actual threat.'' See, e.g., R.A.V. v. City of St.
Paul, Minn., 505 U.S. 377, 388 (1992) (explaining that
prohibiting true threats ``protect[s] individuals from the fear
of violence, from the disruption that fear engenders, and from
the possibility that threatened violence will occur''); United
States v. Wheeler, 776 F.3d 736, 743 (10th Cir. 2015) (``[T]rue
threats [are] statements where the speaker means to communicate
a serious expression of an intent to commit an act of unlawful
violence to a particular individual.'') (internal quotation
marks omitted).
II. History of the Bill and Committee Consideration
A. INTRODUCTION OF THE BILL
On May 1, 2017, Senator Hatch introduced S. 994, the
Protecting Religiously Affiliated Institutions Act. Senator
Feinstein was an original cosponsor. The bill was referred to
the Committee on the Judiciary.
On May 2, 2017, the Committee on the Judiciary held a
hearing entitled, ``Responses to the Increase in Religious Hate
Crimes.'' Testimony was received from Eric Treene, Special
Counsel for Religious Discrimination, Civil Rights Division,
U.S. Department of Justice; Jonathan A. Greenblatt, CEO and
National Director of the Anti-Defamation Legaue; Dr. Prabhjot
Singh, Chair of the Department of Health System Design & Global
Health and Director of the Arnhold Institute for Global Health
at the Mount Sinai Health System; Vanita Gupta, President & CEO
of the Leadership Conference on Civil and Human Rights; and
Chief Will D. Johnson, Chair of the International Association
of Chiefs of Police, Human and Civil Rights Committee.
Mr. Treene noted that hate crimes, which make up 4 percent
of the violent crimes in the United States, are meant to
intimdate and terrorize communities. Religion-based hate crimes
are the second-largest category, after race-based; the FBI
Uniform Crime Report showed a 67 and 9 percent increase in
anti-Muslim and anti-Jewish hate crimes, respectively. In his
written testimony, Mr. Treene explained that the Church Arson
Prevention Act (CAPA) has been used to prosecute crimes that
interfere with religious exercise, including against Dylann
Roof, for the killing of nine African Americans at the African
Methodist Episcopal Church in Charleston, SC, and Robert
Doggart, who ``solicited another man to help him launch an
attack'' in Islamberg, NY, which was founded by African-
American Muslims.
Mr. Greenblatt noted that the FBI's crime data invariably
underreported the instances of hate crimes and that it is
``actually shocking'' that 87 major U.S. population centers
told the FBI that there were no hate crimes, or did not provide
data on hate crimes at all. Mr. Greenblatt recommended
strengthening federal hate crimes bills, including the
criminalization of threats under CAPA. In his written
testimony, Mr. Greenblatt explained that crimnalizing violent
threats to religiously-affiliated organizations is important
because ``the First Amendment's guarantee of religious freedom
means little to those not safe in their house of worship.''
Ms. Gupta in her written testimony recommended passing
legislation that filled the gaps in current law, specifically
CAPA, to include not only attempts, but ``threats to religious
property (emphasis original). Ms. Gupta also recommended
passing the NO HATE Act to provide funding for reporting hate
crimes.
B. COMMITTEE CONSIDERATION
The Committee considered S. 994 on April 19, 2018. Senator
Hatch offered a manager's substitute amendment which the
Committee adopted without objection. The Committee then voted
to report the Protecting Religiously Affiliated Institutions
Act of 210, with an amendment, favorably to the Senate, by
voice vote.
III. Section-by-Section Summary of the Bill
Section 1. Short title
This section provides that the legislation may be cited as
the ``Protecting Religiously Affiliated Institutions Act of
2018.''
Section 2. Protection of community centers with religious affiliation
This section makes adjustments to U.S. criminal law in
order to broaden the prohibited conduct towards religiously
affiliated institutions.
The section amends Section 247 of Title 18, United States
Code, to broaden the scope of prohibited conduct by
specifically addressing threats made against religious real
property, including that which is owned or leased by a
nonprofit, religiously affiliated organization.
The section inserts new language in section 247(a)(2) to
include that the threat of force means that it is ``including
by threat of force against religious real property.''
The section inserts in the matter precending paragraph (1)
of subsection (d) that subsection (d) contains the punishment
provisions for both (a) and (c), and deletes the ``and'' at the
end of the paragraph 247(d)(3).
New language in section 247(d)(4) specifies that if the the
damage or destruction of the property exceeds $5,000, the
imprisonment will be up to three years.
The section redesignates 247(d)(4) as 247(d)(5).
The section inserts new language in 247(f) to include real
property owned or leased by a nonprofit, religiously affiliated
organization.
IV. Congressional Budget Office Cost Estimate
The Committee sets forth, with respect to the bill, S. 994,
the following estimate and comparison prepared by the Director
of the Congressional Budget Office under section 402 of the
Congressional Budget Act of 1974:
April 25, 2018.
Hon. Chuck Grassley,
Chairman, Committee on the Judiciary,
U.S. Senate, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for S. 994, the Protecting
Religiously Affiliated Institutions Act of 2018.
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz.
Sincerely,
Keith Hall.
Enclosure.
S. 994--Protecting Religiously Affiliated Institutions Act of 2018
S. 994 would broaden the coverage of current laws against
damaging religious property; that change would allow the
government to pursue some cases that it otherwise may not be
able to prosecute. CBO expects that the bill would apply to a
relatively small number of offenders, however, so any increase
in costs for law enforcement, court proceedings, or prison
operations would not be significant. Any such spending would be
subject to the availability of appropriated funds.
Because people prosecuted and convicted under S. 994 could
be subject to criminal fines, the federal government might
collect additional fines under the bill. Criminal fines are
recorded as revenues, deposited in the Crime Victims Fund, and
later spent without further appropriation action. CBO expects
that any additional revenues and associated direct spending
would not be significant because the bill would probably affect
a small number of cases.
Pay-as-you-go procedures apply because enacting S. 994
would affect direct spending and revenues. However, CBO
estimates that any such effects would be insignificant on an
annual basis.
CBO estimates that enacting S. 994 would not increase net
direct spending or on-budget deficits in any of the four
consecutive 10-year periods beginning in 2029.
S. 994 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act.
On November 20, 2017, CBO transmitted a cost estimate for
H.R. 1730, the Protecting Religiously Affiliated Institutions
Act of 2017, as ordered reported by the House Committee on the
Judiciary on November 2, 2017. CBO's estimates of the budgetary
effects of the two pieces of legislation are identical.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was reviewed by H. Samuel Papenfuss, Deputy
Assistant Director for Budget Analysis.
V. Regulatory Impact Evaluation
In compliance with rule XXVI of the Standing Rules of the
Senate, the Committee finds that no significant regulatory
impact will result from the enactment of S. 994.
VI. Conclusion
The Protecting Religiously Affiliated Institutions Act of
2018, S. 994, will further protect religiously affiliated
institutions by broadening the scope of prohibited conduct with
regards to threats against religious real property.
VII. Changes to Existing Law Made by the Bill, as Reported
In compliance with paragraph 12 of rule XXVI of the
Standing Rules of the Senate, changes in existing law made by
S. 994, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italic, and existing law in which no
change is proposed is shown in roman):
UNITED STATES CODE
TITLE 18--CRIMES
* * * * * * *
CHAPTER 13--CIVIL RIGHTS
* * * * * * *
Sec. 247. Damage to religious property; obstruction of persons in the
free exercise of religious beliefs
(a) Whoever, in any of the circumstances referred to in
subsection (b) of this section--
(1) intentionally defaces, damages, or destroys any
religious real property, because of the religious
character of that property, or attempts to do so; or
(2) intentionally obstructs, by force or threat of
force, including by threat of force against religious
real property, any person in the enjoyment of that
person's free exercise of religious beliefs, or
attempts to do so;
shall be punished as provided in subsection (d).
(b) The circumstances referred to in subsection (a) are
that the offense is in or affects interstate or foreign
commerce.
(c) Whoever intentionally defaces, damages, or destroys any
religious real property because of the race, color, or ethnic
characteristics of any individual associated with that
religious property, or attempts to do so, shall be punished as
provided in subsection (d).
(d) The punishment for a violation of subsection (a) or (c)
of this section shall be--
(1) if death results from acts committed in violation
of this section or if such acts include kidnapping or
an attempt to kidnap, aggravated sexual abuse or an
attempt to commit aggravated sexual abuse, or an
attempt to kill, a fine in accordance with this title
and imprisonment for any term of years or for life, or
both, or may be sentenced to death;
(2) if bodily injury results to any person, including
any public safety officer performing duties as a direct
or proximate result of conduct prohibited by this
section, and the violation is by means of fire or an
explosive, a fine under this title or imprisonment for
not more that 40 years, or both;
(3) if bodily injury to any person, including any
public safety officer performing duties as a direct or
proximate result of conduct prohibited by this section,
results from the acts committed in violation of this
section or if such acts include the use, attempted use,
or threatened use of a dangerous weapon, explosives, or
fire, a fine in accordance with this title and
imprisonment for not more than 20 years, or both; [and]
(4) if damage to or destruction of property results
from the acts committed in violation of this section,
which damage to or destruction of such property is in
an amount that exceeds $5,000, a fine in accordance
with this title, imprisonment for not more than 3
years, or both; and
[(4)] (5) in any other case, a fine in accordance with
this title and imprisonment for not more than one year,
or both.
(e) No prosecution of any offense described in this section
shall be undertaken by the United States except upon the
certification in writing of the Attorney General or his
designee that in his judgment a prosecution by the United
States is in the public interest and necessary to secure
substantial justice.
(f) As used in this section, the term `religious real
property' means any church, synagogue, mosque, religious
cemetery, or other religious real property, including fixtures
or religious objects contained within a place of religious
worship, or real property owned or leased by a nonprofit,
religiously affiliated organization.
(g) No person shall be prosecuted, tried, or punished for
any noncapital offense under this section unless the indictment
is found or the information is instituted not later than 7
years after the date on which the offense was committed.
* * * * * * *
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