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Intent, motive, and the R.A.V. decision.

I write to make three points. First: the criminal law's long-standing distinction between intent and motive, which Professor Murphy denigrates, is really quite clear, as legal principles go. Second: in its application to hate crimes, the distinction is also eminently serviceable. In particular, it supplies the key to drafting "enhancement" statutes that will work effectively (if such statutes ever can), and that will satisfy the requirements of the majority opinion in R.A.V. v. City of St. Paul, Minnesota.(1) Third: that opinion, far from "adopt[ing] an untried theory,"(2) is very much in the mainstream of the Court's First Amendment jurisprudence, and is not "transparently wrong," "mischievous," or "folly," as the concurring Justices so colorfully assert.(3) The opinion is, instead, a smashing triumph for First Amendment values.

I "Intent" Versus "Motive"

In his article entitled "Bias Crimes: What Do Haters Deserve?" Professor Murphy supports hate crime statutes that turn on the perpetrator's motive. He does so because he believes that the distinction between "intent" and "motive" is a useless semantic exercise and a potentially pernicious one as well. To buttress his thesis, he offers the following conundrum: suppose Jones falls off a ladder while trying to get a box from the top shelf. Which is Jones's intent and which is his motive? To climb the ladder? To take the box? To take the money that is inside the box? To buy whatever it is that he wishes to buy with the money? And why in heaven's name should the label matter?

It's clever, but it won't do. In the first place, the solution to the conundrum is very simple. It turns on one question: of what crime is Jones accused? For we should bear in mind what Murphy, seemingly, forgets: one's intent, in criminal law, is one's purpose, or state of awareness (or, in crimes of negligence, one's culpable lack of awareness) with respect to the harm that the relevant criminal statute forbids.(4) Thus, if it's an offense to climb ladders in Jones's jurisdiction, and Jones is charged with that offense, then his "intent" is to climb the ladder. If, on the other hand, Jones is charged with theft, his "intent" is to steal the box.(5) And the label matters a great deal. By limiting our inquiry to whether Jones "intended" to climb the ladder (if climbing ladders is the crime) or to steal the box (if the crime is theft), we exclude inquiries into why Jones acted--whether to enrich himself, or to help the poor--which is to say, we exclude inquiries into his character and values. We do so because we do not trust our fellow creatures (flawed, like ourselves) to pass judgments of this kind. Accordingly, we ascribe Jones's reasons for acting to the category of "motive," and we do not trouble to explore the various layers of motive. (For instance, just why does Jones want to help the poor? Because he's a decent fellow? Or because he wants to impress his girl-friend?) The point is that none of these motives is of any legal account.

Once one understands the relatively straightforward test for separating intent from motive, and its rationale, it is easy to dispose of Murphy's Barber example.(6) Dr. Barber, animated by wholly humanitarian concerns, had removed life-support systems from a hopelessly comatose patient. The appeals court, reversing Barber's conviction, concluded that he had not performed an "act," but rather, had merely "omitted" to provide heroic treatment in the absence of any duty to do so. Murphy derides the reasoning as pretextual. In reality, Murphy insists, the court quite properly acquitted Barber because of his praiseworthy motive. Unfortunately, the court--in deference to the orthodox legal doctrine that dismisses motive as irrelevant--was reluctant to say so. Does this mean, Murphy asks rhetorically, that Barber must similarly be acquitted if he removes life-support systems for less laudable motives: say, to inherit under a life insurance policy, or out of sheer sadism?

Well, yes. The decision does and should mean just that. The test is not what motivates Barber; it is whether Barber has objective justification for terminating treatment, that is, knows (or reasonably believes) that the patient is irreversibly comatose. If the justification exists, it does not matter whether Barber is motivated by cupidity, sadism, or whatever. He is innocent. Conversely, if the justification does not exist--if, for instance, Barber suspects that the patient may one day regain a limited measure of consciousness but removes the machinery anyway--he is guilty, even if he is motivated by an honest humanitarian belief that the patient would be better off dead. To counter Murphy's example with one of my own: Suppose that state law requires a prison warden to seek volunteers, from the general public, for the office of executioner each time that an execution is scheduled to take place. And then suppose that Smith volunteers for the office on one occasion, not out of public-spiritedness, but because the condemned man is Smith's enemy, or, Murphy-style, has written a will in Smith's favor. Surely Murphy does not mean to suggest that Smith is a murderer when he presses the switch.(7)

In sum, the critical factor is intent, which is readily distinguishable from motive. And in R.A.V., as we shall see, the distinction is elevated to the level of a constitutional principle.

II Intent, Motive, and R.A.V.

The evil at which Justice Scalia aims, in R.A.V., is so-called viewpoint discrimination. This evil arises when the government discriminates among individuals who are otherwise similarly situated, based on whether the individuals have expressed officially disfavored ideas. The statute which R.A.V. invalidated was a paradigm of the evil in that it punished the defendant not for his constitutionally unprotected conduct, but because the conduct, in Justice Scalia's words, "contain[ed] messages of |bias-motivated' hatred and, in particular ... messages |based on virulent notions of racial supremacy."'(8)

The same evil exists, by definition, whenever guilt depends, in any degree, upon the presence of a racist, sexist, or otherwise invidious motive. Such a motive inevitably reflects the actor's viewpoint (or, as I expressed it in the previous section, the actor's character and values). A motive-oriented statute would therefore fail to satisfy R.A.V.'s standards.(9)

The evil is not implicated, however, when guilt turns on the actor's intent to select the victim on the basis of the victim's race, gender, handicap, and so on. Under an intent test, a Howard Beach assailant is guilty of an enhanced offense regardless of whether he attacks blacks because he himself is fired by racial hatred or does so merely to curry favor with his social crowd. His viewpoint and values are not a factor. Accordingly, an "intent" statute (if not vague or overbroad) should pass constitutional muster.(10)

Constitutional problems aside, moreover, a bias statute that looks to intent is far better tailored to the evil it seeks to erase. Motive-oriented statutes, in contrast, are grotesquely underinclusive. If a biased motive were the sine qua non for conviction, then the Howard Beach assailant would be innocent unless he personally harbored the motive that the law proscribes. Without that motive, he could not be convicted as a principal, for an element of the crime would be missing. Neither would he be guilty as an accomplice to those of the perpetrators who did harbor the motive because, in most jurisdictions, the accomplice must actually share the principal's aims. Mere knowledge of those aims is not enough.(11) It is downright silly to spare this assailant from enhanced penalties while applying such penalties to his racist confederates. Thus, prudential as well as constitutional considerations require that we focus exclusively on intent.

A final point: proof of biased motive is of course relevant as one means of establishing the forbidden intent. To this end, the prosecution could introduce statements, uttered at the scene of the crime, that evince racial or other class-based hatred. The introduction of such statements would not run afoul of R.A.V.'s strictures, for, as the Supreme Court has written, "it has never been deemed an abridgment of freedom of speech ... to make a course of conduct illegal merely because the conduct was in part initiated, evidenced, or carried out by means of language...."(12) When John Wilkes Booth shot Lincoln, for instance, he shouted immediately afterward "Sic semper tyrannis" ("Ever thus to tyrants"). This utterance, in ordinary circumstances, would constitute pristine political expression, and Booth could not be prosecuted for declaiming it, or for harboring the sentiment that it expresses. But suppose that Booth had been captured alive, and had testified at his trial that he'd shot Lincoln accidentally. Surely the most devoted civil libertarian would not object to the prosecutor's using the utterance to prove the intent to kill. On the other hand, racist statements uttered prior to the crime, though equally probative, should be excluded because such far-ranging inquiries could have a devastating impact on First Amendment values. Whether this distinction would render hate crime statutes ineffective, by counseling bigots to commit their outrages in silence, is beyond the scope of this short paper.

III In Praise of R.A.V.

I am not in the habit of defending Justice Scalia. But R.A.V.'s guiding principle--that the government may not establish favored orthodoxies even when dealing with unprotected activity--is, to me, unexceptionable and indeed commendable.(13) Surely there is nothing novel about it. The Court said essentially the same thing in its two flag-burning decisions, Texas V. Johnson(14) and U.S. v. Eichman(15) (with Justice Scalia concurring). These decisions, as I understand them, stand for the proposition that, while setting outdoor fires has no claim to constitutional protection, and can be proscribed across the board,(16) the government may not legislate selectively against persons who set fires to express political ideas. Nor is the principle the "mischievous ... folly" that the concurring Justices describe. To use another example: The state, undoubtedly, can pass criminal trespass laws, and apply those laws to sit-ins at lunch counters and abortion clinics. Like the "fighting words" at issue in R.A.V., trespass, generically, is not "speech." But I should think it a plain First Amendment violation for the state to single out, for punishment or for enhanced punishment, trespasses committed at lunch counters for the purpose of protesting racial segregation, or trespasses committed at abortion clinics for the purpose of protesting abortion. That, in substance, is what the St. Paul, Minnesota ordinance did: Instead of forbidding fighting words in general, it targeted only fighting words that conveyed certain offensive ideas. Justice Scalia, therefore, was right to condemn it.(17)


I confess to deep skepticism about hate crime statutes, for all of the obvious reasons:(18) the danger that they will be used against minorities, rather than for their benefit, and the danger that prosecutors will conduct (and courts will countenance) chilling inquiries into defendants' past speech and associations. The dangers, though, go to the statutes' wisdom, or to their constitutionality as applied. My purpose has not been to explore these dangers. Rather, it has been to establish that R.A.V. presents no obstacle to finding such statutes valid on their face as long as the drafters focus on intent and not on motive (and as long, of course, as the statutes do not fall prey to other constitutional ills such as vagueness, overbreadth, and the like). In reaching this conclusion, I in no way intimate that hate crime statutes are desirable. As our courts have many times reminded us, a statute's constitutionality is one thing, its wisdom altogether another.


(1) 112 S.Ct. 2538 (1992). R.A.V. itself did not involve an enhancement statute because the ordinance did not provide for aggravation of an existing crime but rather created a discrete offense. R.A.V.'s relevant teachings, however, apply to both types of statutes, and therefore I shall not differentiate between them. (2) Id. at 2551 (White, Blackmun, O'Connor and Stevens, JJ, concurring). (3) Id. at 2551, 2560. (4) "Intent," of course, includes other mental states besides purpose. See Model Penal Code [Section] 2.02. It can also include knowledge to a near certainty that the harm will occur, reckless indifference to the known risk of harm, or the failure to anticipate a harm that a reasonable person would foresee. Different statutes require different mental states. (5) The intent is to steal the box rather than to steal the money. How much money is in the box may well make the difference between petty larceny and grand larceny. But, under the criminal law's well-known "lesser wrong" principle, if Jones intends to steal the box, it doesn't matter whether he knows (or suspects, or should know or suspect) what the box contains, or whether his purpose (that is, his wish or his hope) is to take money in a certain amount. If the box holds enough in the way of money or other valuable items to push it above whatever line separates petty from grand larceny in Jones' jurisdiction, then he is strictly liable for the more serious offense. For the classic exposition of this principle--the refinements of which cannot be discussed in the brief space available to me here-see Regina v. Prince, L.R. 2 Cr. Cas. Res. 154 (1875). (6) Barber v. Superior Court, 147 Cal.App.3d 1006,195 Cal. Rptr. 484 (1983). (7) Murphy offers one additional variation on the Barber Theme: Is a stranger who enters the hospital from the street and removes the equipment likewise innocent on the ground that this, too, is merely an omission? That variation is even further off the mark than the others. Obviously, the stranger is performing an "act"--the act of interfering with the physician's exercise of medical judgment. Only the physician may decide when treatment should end. (8) 112 S.Ct. at 2548. (9) For examples of motive-based hate crime statutes, see Cal. Penal Code Section 1170.75 (West Supp. 1991); Fla. Stat. Sec. 775.085 (1991). (10) See, e.g., N.Y. Penal Law [Section] 240.30(3) (McKinney 1988); Or. Rev. Stat. [Section] 16.155 (1989). (11) See, e.g., Model Penal Codes [Section] 2.06(3)(a); State v. Gladstone, 474 P.2d 274 (Wash. 1980); U.S. v. Peoni, 100 F.2d 401, 402 (1938). But see Backun v. U.S., 112 F.2d 635,637 (4th Cir. 1940). (12) Giboney v. Empire Storage and Ice Co., 336 U.S. 490,502 (1949) (emphasis added). Interestingly, the quoted statement was penned by Justice Black, who, like Justice Douglas, was a speech "absolutist." Justice Douglas expressed a similar concept when he stated that speech is not protected if it is "so closely brigaded with illegal action as to be an inseparable part of it." Roth v. United States, 354 U.S. 476,514 (Douglas, J., dissenting); Brandenburg v. Ohio, 395 U.S. 444,456 (1969) (Douglas, J., concurring). (13) I confess to some self-serving bias on this point. As counsel for the amicus curiae Connecticut Civil Liberties Union in Nina Wu v. University of Connecticut, Civ. No. H-89-649 (PCD) (D. Conn. 1990), I helped draft a consent order that invalidated a university hate speech code. Anticipating R.A.V. by nearly two years, the order provided that the University could prohibit the face-to-face utterance of racist, sexist and similar epithets only as part of a general proscription against all "fighting words." R.A.V. effectively vindicated our judgment in fashioning this order. (14) 491 U.S. 397 (1989). (15) 110 L.Ed.2d 287 (1990). (16) See U.S. v. O'Brien, 391 U.S. 367 (1968). (17) To the same effect, see Wayte v. U.S., 470 U.S. 598 (1985). Wayte was prosecuted for failing to register for the draft. Plainly the failure to register, in itself, is constitutionally unprotected. Wayte argued, though, that the government had singled out for prosecution registrants like himself who had spoken out against conscription. The Court rejected his claim, but only because he had not proved it. The opinion made it very clear that the government could not selectively prosecute non-registrants "on the basis of their speech." 470 U.S. at 609. Wayte, to be sure, dealt with discriminatory administration of a law rather than discriminatory law-making, but it has been settled for more than a century that this is a distinction without a difference. Yick Wo v. Hopkins, 118 U.S. 356 (1886). (18) See, generally, 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 (1991).
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Title Annotation:Penalty Enhancement for Hate Crimes; response to article by Jeffrie G. Murphy in this issue, p. 20; R.A.V. v. City of St. Paul
Author:Margulies, Martin B.
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
Previous Article:Freedom of thought as freedom of expression: hate crime sentencing enhancement and First Amendment theory.
Next Article:Susan Gellman has it right.

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