Printer Friendly

"Brother, you can't go to jail for what you're thinking": motives, effects, and "hate crime" laws.

Justice Holmes once wrote: "[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought--not free thought for those who agree with us but freedom for the thought that we hate."(1) That is the crux of the First Amendment challenge to the ADL model "hate crime" statute and its progeny. Professors Murphy and Weinstein focus so tightly on semantic and philosophical distinctions that they seem to have lost sight of the basic First Amendment problem: the ADL model statute addresses a serious problem in a way that infringes not only upon speech, but upon freedom of thought. As other approaches exist that would not create that infringement, one must question government's interest in insisting upon an approach that does so infringe.

Professor Murphy's purpose is to show that the cliche |motives are irrelevant to criminal liability' is not as clear as he believes I think.(2) I would not call motives "irrelevant" to criminal liability.(3) Motive may be demonstrated at trial in order to prove other elements of an offense, such as identity or intent. The point is simply that even though motive can be relevant to guilt of an offense, it does not follow that it may therefore be an element of an offense. A defendant's cry, "There is no room in America for traitors!" prior to committing a murder may be introduced as evidence that the defendant was the killer, or that the killing was intentional. This does not mean that the sentiments expressed in the statement may themselves be made a punishable element of the offense. In any case, Professor Murphy makes too much of this entire argument. Even if motive could be made an element of an offense, it could not be done in a way that draws distinctions based on the viewpoint held and expressed. Those distinctions are inconsistent with the First Amendment. Whether or not motive is ever punishable, the punishment for motive imposed by laws based on the ADL model is unconstitutional.

Professor Murphy fears "evil" results from refusal to allow criminalization of motive. He points to our desire to see "mercy killing" cases treated differently from cold-blooded murder, and asks why we don't simply admit that we want the law to look at motives. Here he is making too quick an assumption that it is in fact motive that separates a mercy killing from a "regular" murder. After all, someone might kill homeless people, severely retarded or disabled people, or even people who have just received absolution, sincerely believing it to be a mercy killing. You and I may disagree with the killer that it is in fact merciful, but if the killer thinks so, then the motive is identical to Dr. Barber's.(4) Perhaps the result in Barber's case could be more sensibly justified by a finding of implied consent (with appropriate adjustments in the murder statute, as some jurisdictions have done). Suppose we knew that Barber's "victim" had, before lapsing into the coma, stated firmly and repeatedly that he did not, under any circumstances, including coma, wish to be removed from life support systems. We might feel different about the character of Barber's act (that is, exactly what he did), even though his motive (that is, why he did it) was still mercy killing.

In defending "hate crime" statutes, Professor Murphy has inadvertently stated one of the strongest objections to them. He sums up the difference between bias-related crime and other crime as follows: "What is different is that in the one case, but not in the other, a degrading and humiliating message is being sent and received .. ."(5)

Exactly. The difference is that a message is being sent and received. As that sending and receiving of a message is the only thing for which additional punishment is imposed, the First Amendment violation is obvious.

Even this conclusion depends upon seeing these laws in their best possible light; that is, assuming that a humiliating message has been sent and received. The ADL statute, in an apparent attempt to avoid speech punishment, runs even further afoul of the First Amendment by making motive, not message, the element. Therefore, the additional penalties are imposed even if no such message is received. For example, the victims may be unaware of the offender's reason for acting, or they may not find the message uniquely humiliating or degrading. Conversely, if a message is "received" although never "sent" (that is, the victims feel humiliated because they believe the crime to have been motivated by bias, although in fact it wasn't), then the extra harm is there, but the statute does not reach it. In fact, as there is no mens rea requirement, the statute could not reach it.

Professor Murphy postulates a "hate crime statute that, using burglary as a model, made it a crime to assault another person with the purpose of subjecting that person to racial humiliation."(6) If that model would be acceptable, he continues, then "opposition to the ADL model is purely semantic--easily met with some modest redrafting." I disagree. Although that formula as it stands does not comport with the First Amendment (the content-specific qualifier, "racial," should be eliminated, for one thing), it is an improvement upon the ADL model. It speaks not to subjective and viewpoint-specific motives of the defendant, but to the specific intent to create a certain result. This is no "purely semantic" or otherwise insignificant difference, and it certainly is not "easily met with some modest redrafting," particularly in such a heavily political and controversial area of the law.

Differences of statutory language are not insignificant semantic matters. Words are, after all, the only tool of the law. The words chosen--even seemingly slight variations in them--make all the difference in the meaning of a statute. The same choice of words will determine whether or not the statute will be held unconstitutional.

Professor Weinstein's careful and insightful analysis is flawed by its dependence upon incorrect assumptions about the criticisms of laws based upon the ADL model. First, he asks, "Where's the speech?" and posits that if an offense does not entail pure speech or expressive conduct, then there is no First Amendment issue.(7) That is much too narrow a reading of the speech clause. After all, it is not so much speech the First Amendment protects as it is the speaker, or more specifically, the speaker's liberty to speak. Thus, although "speech" is given constitutional ink, the courts have properly recognized that freedom of speech necessarily presupposes the freedom to think, to believe, to disagree.(8)

The point here is not whether statutes based on the ADL model punish "speech," although in many cases they do. Rather, as the Supreme Courts of Ohio and Wisconsin have held,(9) the principal First Amendment violation is that they punish thought, opinion, and belief in addition to punishable conduct, and they do so in a content- and viewpoint-specific way.

Professor Weinstein claims that if the psychic injury is "just an unfortunate

by-product of the violence rather than the result of some particularized message intended by the perpetrator . . . then there is no free speech problem with punishing the defendant for this added injury."(10) Perhaps there is no direct punishment of "speech" in such a case, but as to thought, this view is especially pernicious: if the defendant did not intend to express any message, and we punish the defendant for the message the victim received anyway, we are punishing the defendant not for what he or she thought, but for what someone else thought. If that is permissible, then what prevents a state from expanding the ADL model to include cases in which there is not a racist motive at all, but the victim--or anyone else--thinks so?

Professor Weinstein misreads Dawson v. Delaware(11) and Barclay v. Florida.(12) In those cases, the Supreme Court simply clarified that the First Amendment does not create a "per se barrier" to the introduction of a defendant's First Amendment-protected beliefs, including bigotry, as evidence of some other, content-neutral sentencing factor, such as whether commission of the offense "created the risk of the death of many people," or whether the offense was committed "in a particularly cruel and heinous manner." This is not all that earth-shaking: relevant First Amendment-protected activity has always been permissibly introduced as evidence, not only at sentencing but also at the guilt phase. The Court did not expand upon that in either Barclay or Dawson to say that the bigotry of the defendant could itself be a sentencing factor, much less an element of a punishable offense. By way of analogy, if I were being tried for burglary, the state could, consistent with the First Amendment, introduce evidence that fifteen minutes before the crime I was seen in a synagogue a block away, in order to establish the element of identity. In a murder trial, the state could introduce evidence that I had engaged in a heated political debate with the victim before the killing, in order to prove the element of intent. This does not mean that it is therefore permissible to make being in a synagogue or engaging in political debate an element of a criminal offense.

Another incorrect premise affecting Professor Weinstein's analysis is an overstatement of one of the objections to the ADL model statute. He spends the bulk of his essay refuting "the claim that the sole purpose of enhanced penalties for racially motivated violence is to punish the defendant for holding certain abstract beliefs that the state finds offensive."(13) The unconstitutionality of the statute does not depend upon that being the sole purpose of a legislature enacting such a law. Putting aside cynical speculations about the political purposes of individual legislators, it is fair to ascribe to them purposes other than the desire to infringe upon persons' right to freedom of thought. One such purpose would be to advance the state's interest in protecting its citizens from the additional injuries associated with bias-related crimes.(14)

Even viewing that as a compelling state interest, however, does not solve the problem, because ADL-type statutes still do not survive the rest of the strict scrutiny analysis. To begin with, the ADL model doesn't say anything at all about effects; it addresses only the offender's motive. Even if motive were punishable, it is not an appropriate surrogate for the additional effects of bias crime, because the "fit" is not close enough: as noted above, sometimes the additional effects are present without the motive, and sometimes the motive is there, but the additional harm is not created.

Professor Weinstein states that even isolated incidents of bias-motivated crimes can create an extra psychic injury to persons with memories of pogroms or lynchings.(15) This seems plausible, but it still does not explain why adding a punishment for motive is the correct solution. Why not simply extend existing "serious physical harm" enhancement specifications to include serious psychic harm? Why limit the enhancement to psychic harm caused only by bias, which makes the statute underinclusive (even if not unconstitutionally so); and conversely, why apply the statute to every bias-motivated crime, even where the victim is not a "thin skull" victim, which makes it overinclusive? Professor Weinstein himself says no more than that "the extra punishment ... can be justified by the extra harm that such crimes may cause,"(16) but states that this somehow "belies the charge that the ADL model statute does not address effects."(17)

The asserted state interest is in combatting the extra harm created by bias-related crimes. However, as the Supreme Court recognized in R.A.V., that additional harm consists of the impact of the offender's beliefs and the offensiveness of their communication. This harm is both real and significant, but the beliefs and their communication are still squarely within the protection of the First Amendment. The Court said:

[The St. Paul ordinance] is directed, [concurring Justice Stevens] claims, not to speech of a particular content, but to particular "injur[ies]" that are "qualitatively different" from other injuries. . . . This is word-play. What makes the anger, fear, sense of dishonor, etc. produced by violation of this ordinance distinct from the anger, fear, sense of dishonor, etc. produced by other fighting words is nothing other than the fact that it is caused by a distinctive idea, conveyed by a distinctive message. The First Amendment cannot be evaded that easily.(18)

If the state's interest in protecting citizens from the offensiveness and sense of fear created by bias-motivated crimes could justify punishment of motives, there would seem to be no reason it could not also be used to justify punishment of books, speeches, and demonstrations that create the same or worse effects.

Like the unconstitutional St. Paul ordinance, the ADL model statute does not survive the strict scrutiny analysis. Approaches that do not infringe the First Amendment are available to the government. In R.A.V., the Court rejected St. Paul's contention that despite the ordinance's regulation of expression based on hostility towards its protected ideological content, that selective prohibition was permissible because it was narrowly tailored to serve a compelling state interest in protecting the rights of historically discriminated against groups. Although the Court acknowledged the importance of the asserted interest, it rejected the argument that the content- and viewpoint-based regulation was necessary to serve that interest; "it plainly is not," said the Court, because content- and viewpoint-neutral alternatives existed.(19)

In fact, the only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases singled out. That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility--but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree.(20)

Jurisdictions enacting ADL-type statutes have at their disposal content-and viewpoint-neutral means to punish all conduct reached by the model statute. The statutes criminalizing the offenses the commission of which is a necessary predicate to violation of the model statute already do exactly that. Furthermore, content-and viewpoint-neutral alternatives exist to redress the extra harm caused by bias-motivated crimes as well. As written, the model statute does not even address any such additional effects, only the content of the offender's motives. Should a legislature determine that additional penalties are necessary for those additional effects, it need only construct a statute addressing effects rather than motives. For example, a statute could upgrade offenses where the offender acted "with specific intent to create

terror in a definable community," or "with specific intent to issue a threat of further crime." Such formulations would reach all the conduct contemplated by the model statute (and more besides, such as drive-by shootings, abortion clinic bombings, and poisoning of bottles of Tylenol); they are content-and viewpoint-neutral; and they would be easier to enforce, because they would relieve the state of the difficult task of proving "motive." The existence of such adequate content-neutral alternatives confirms the unconstitutionality of the model statute, just as it did that of the St. Paul ordinance in the R.A.V. case.

Professor Weinstein misstates the government's burden in the strict scrutiny analysis. When a statute regulates expressive conduct, he says, "the crucial inquiry is whether the state can point to a plausible justification for the regulation of that conduct."(21) The strict scrutiny analysis, however, requires far more than a mere "plausible justification" (which sounds like a euphemism for "pretext"). Perhaps a "plausible justification" would satisfy the much more deferential "rational relationship" analysis, applicable to situations where neither the infringement of fundamental rights nor the establishment of invidious classifications is at issue. However, it appears that Professor Weinstein did not have this in mind, given that the cases he cites in support of this proposition, United States v. O'Brien(22) and Texas v. Johnson,(23) are both strict scrutiny cases.

The above discussion responds to Professor Weinstein's assumption that criticism of these laws is based on the theory that punishment of bigoted belief is the sole purpose of these laws. In fact, there are other interests, but they do not save the model law from unconstitutionality. Perhaps, however, whether or not punishment of bigoted belief is the sole purpose, or even whether there is a legitimate purpose as well, is the wrong question. Even if the government's desire to punish belief and expression is no part of its purpose in enacting such a law, if the effect of the law is to punish belief and expression more than merely incidentally, then there is still a First Amendment violation.

Is punishing people for opposing government policies the "only possible purpose" of a flag-burning law? Of course not, and the Supreme Court, in both Texas v. Johnson(24) and United States v. Eichman(25) explicitly recognized that there were other purposes for those laws, unrelated to the punishment of motive and expression. Nevertheless, the effect of both laws was still to punish motive and belief, and so they were struck down.

Even when legislatures' motives in enacting ADL-type laws are proper, the effects created by those laws render them unconstitutional. Professor Weinstein considers only the motives. Ironically, this is exactly the problem with the laws themselves: they focus only on offenders' motives, when they should (for both constitutional and practical purposes) be addressing the effects of their conduct.

Professor Weinstein fears that the reasoning of State v. Mitchell(26) could be used to invalidate civil rights laws, and warns: "Such a far reaching and untoward consequence should at a minimum lead those who have concluded that hate crime legislation violates the First Amendment to carefully reevaluate their position."(27) This seems to be an invitation to intellectual dishonesty in the name of the greater social good. If there is a constitutional flaw in a statute, even the most noble and important of statutes, the proper response is not to turn a blind (but politically correct) eye to it, but to correct that flaw by conscientious redrafting. In any case, neither Title VII nor any other federal or state civil rights laws are rendered unconstitutional or endangered by constitutional challenges to ADL-type statutes.(28) The courts holding ADL-type statutes unconstitutional, including the Wisconsin Supreme Court, in Mitchell, have specifically distinguished the civil rights laws.(29)

Finally, Professor Weinstein acknowledges the possibility of misuse of these statutes in cases in which the evidence of racist motive consists of epithets uttered at the time of the offense, so that the added punishment is actually imposed for expression. His only suggestion to prevent this problem is the following: "One would hope that prosecutors would not misuse hate crimes in this way.... And if such inappropriate prosecutions are brought, courts should summarily dismiss them . . . ." One can hope all one likes; one can also put a toddler with a purple marker on a white sofa and hope for the best, but I wouldn't recommend it. In fact, cases based on this "epithets" scenario are probably the most frequent applications of these laws; those are exactly the facts in State v. Wyant, for example. Few if any cases to date are not mixed motive situations. Professor Weinstein has correctly identified a flaw in these statutes that makes consistency of application impossible for even the most well-intentioned prosecutors and courts, and invites easy abuse from those not so honorably inclined.

Similarly, Professor Weinstein acknowledges as an even more serious problem the "real potential for chilling protected speech . . . if the prosecution uses a defendant's expression of racist beliefs [on other occasions] as evidence of his motivation" for the offense. His response, that this chilling effect "can be largely avoided, and certainly mitigated, by sensible application of ordinary rules of evidence that balance the probative value of proffered evidence against its likely prejudicial effect," is inadequate. If a bigoted motive is the single element that must be proved in addition to the base offense, and Professor Weinstein does not want to rely on epithets at the time of the offense, what could be more probative of a bigoted motive than the defendants' remarks at other times, the contents of their bookshelves, demonstrations or lectures they have attended, and organizations to which they belong? Indeed, it is difficult to imagine what other proof there could be of bigoted motive.

Nobody seems to disagree about the seriousness of the problem the ADL model statute is supposed to address. Nobody contends that government should ignore it. The only question is how government may and should respond. There is a thin line between government action that is forbidden by the First Amendment, and government action that is permissible. Comfortably far from the line on the permissible side is punishment of violent conduct. Close to the line on the permissible side is punishment of fighting words. Professors Murphy and Weinstein would (incorrectly, in my view) place punishment of motive on the permissible side as well, but even they would agree that it is close to the line. Certainly, it is closer than an effects-based statute, as described above. Given that an effects-based approach also serves the state's interest in punishing the special harms of bias crimes more effectively than a motive-based approach, even if the latter were constitutionally permissible, government should choose the course that ensures maximum, not minimum, protection of speech, thought, and belief.


The author is counsel for the defendant in State v. Wyant, 64 Ohio St. 3d 566, 597 N.E.2d 450, petition for cert. filed, 61 U.S.L.W. 3303 (U.S. Sept. 29, 1992)(No. 92-568). She gives special thanks to Robert L. Lane, Chief Appellate Counsel, Ohio Public Defender, her Wyant co-counsel, for his consultation and contributions to this essay. (1) United States v. Schwimmer, 279 U.S. 644,654-44 (Holmes, J., dissenting), overruled, Giroward v. United States, 328 U.S. 1 (1946). (2) Murphy, Bias Crimes: What Do Haters Deserve? 11 Crim. Just. Ethics 20 (1992). (3) Professor Murphy may be thinking of a reference I made to Professor LaFave's statement that "motive is not relevant on the substantive side of the law." Gellman, Sticks and Stones Can Put You In Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 U.C.L.A. L. REV. 333, 364 (1991) (quoting W. LaFave & A. Scott, Criminal Law [Section] 3.6 at 227 (2d ed. 1986)). That is a very different statement from Professor Murphy's "motives are irrelevant to criminal liability." (4) Barber v. Superior Court, 147 Cal. App. 3d 1006,195 Cal. Rptr. 484 (1983). (5) Murphy, supra note 2, at 22 (Murphy's emphasis). (6) Id. at 21-22. (7) Weinstein, First Amendment Challenges to Hate Crime Legislation: Where's the Speech? 11 Crim. Just. Ethics 6 (1992). (8) Wooley v. Maynard, 430 U.S. 705 (1977). See also Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977) ("[A]t the heart of the First Amendment is the notion that an individual should be free to believe as he will, and that in a free society one's beliefs should be shaped by his mind and his conscience rather than coerced by the state."). (9) State v. Wyant, 64 Ohio St. 3d 566,597 N.E. 2d 450, petition for cert. filed, 61 U.S.L.W. 3303 (U.S. Sept. 29, 1992) (No. 92-568); State v. Mitchell, 169 Wisc. 2d 153, 485 N.W.2d 807, petition for cert. filed, 61 U.S.L.W. 3266 (U.S. Sept. 21, 1992) (No. 92-515). (10) Weinstein, supra note 7, at 11-12. (11) 112 S.Ct. 1093 (1992). (12) 463 U.S. 939 (1983). (13) Weinstein, supra note 7, at 9. (14) In the wake of decisions such as State v. Wyant and State v. Mitchell, supra note 9, holding that punishment of motive violates the First Amendment and state constitutions, states are now arguing that protection from these additional injuries has been the sole purpose for these laws all along. (15) Weinstein, supra note 7, at 10-11. (16) Id. at 11. (17) Id. (18) 112 S.Ct. at 2548 (1992). (19) Id. at 2550. (20) Id. (footnote omitted). (21) Weinstein, supra note 7, at 9 (emphasis added). (22) 391 U.S. 367 (1968). (23) 491 U.S. 397 (1989). (24) Id. (25) 497 U.S. 2404 (1990). (26) See, supra , note 9. (27) Weinstein, supra note 7, at 15. (28) See Gellman, supra note 3, at 367-68. (29) State v. Mitchell, supra note 9, at 175-78, 485 N.W.2d at 816-17. See also State v. Wyant, supra note 4, at 575, 597 N.E.2d at 456.
COPYRIGHT 1992 Institute for Criminal Justice Ethics
No portion of this article can be reproduced without the express written permission from the copyright holder.
Copyright 1992 Gale, Cengage Learning. All rights reserved.

Article Details
Printer friendly Cite/link Email Feedback
Title Annotation:Penalty Enhancement for Hate Crimes; response to articles by James Weinstein and Jeffrie G. Murphy in this issue, p. 6, 20
Author:Gellman, Susan
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
Previous Article:Bias crimes: what do haters deserve?
Next Article:Freedom of thought as freedom of expression: hate crime sentencing enhancement and First Amendment theory.

Terms of use | Copyright © 2016 Farlex, Inc. | Feedback | For webmasters