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Susan Gellman has it right.

The starting point for the two essays by Murphy and Weinstein to which I will attempt some brief rejoinder was, as they make clear, a thorough and penetrating article by Susan Gellman.(1) In it she laid bare the First Amendment shortcomings of a popular form of statute that creates an additional crime when an underlying offense such as an assault is found to have occurred "because of," or "by reason of" the race, color, religion, or other characteristics of the victim. Sometimes the statutes enhance the underlying offense by raising its degree, for instance, from a misdemeanor to a felony.

Professor Gellman's article received the accolade of providing rationale, and quoted language, for a 1991 decision of the Supreme Court of Wisconsin.(2) There the court invalidated on First Amendment grounds a statute that, applied to a black defendant who incited others to beat a white youth for racial reasons, doubled his sentence from two years to four.

Professor Murphy concentrates his fire on one central (but not essential) element of the Gellman article. She observes that hate crime enhancement statutes necessarily inquire into motive--why did the defendant batter the plaintiff? Motive, she says, is not ordinarily an element in defining criminality. And when the answer to the question "Why?" is "Racist bias," the law intrudes upon the thoughts and beliefs of the wrongdoer. The First Amendment enthrones freedom of speech. Anterior to speech, and on an even loftier throne, sits freedom of belief. Racist bias is, for most of us, a prime example of the "thought that we hate."(3) That kind of hated thought is just what the First Amendment must protect. Nothing else does.

Now, Professor Murphy lets fly a powerful broadside at the cliche that motive has no part in defining criminality. He is very likely right in his argument that we frequently need to know about motive. But when the motive's kernel is exposed, and it reveals a political or social belief system that we are compelled to tolerate, then: not so fast! You may not make such a belief the essence of a crime. That is all I think Gellman needed to say.

Murphy concludes by suggesting that a racially motivated assault implies contempt for the victim, and does him psychic as well as physical harm. That is probably true (though Murphy the philosopher cannot leave it at that: he blunts the edge of his argument by speculating that all assailants are motivated by a desire to humiliate their victims).

The added harm to the victim is likewise adduced by Weinstein as a prop for legitimizing enhancement crimes. Let us turn to his elaborate and trenchant dismantling of Gellman.

Weinstein declares that he is refuting only the position that enhancement statutes on their face violate the First Amendment. He allows that they can be applied in unconstitutional ways. But he develops his case by marshalling a whole catalog of reasons why enhancement statutes may be enacted. In doing so, he ranges far beyond the rather technical concepts that support facial invalidity. He concludes by summarizing (so succinctly that I will simply quote) what he thinks are five legitimate interests that the state may have in enhancing the punishment for racially motivated crimes: (1) such crimes are inherently especially reprehensible; (2) there is a moral consensus that such crimes are particularly blameworthy; (3) racially motivated violence is often more damaging to the victim than the same violent act lacking racial animus; (4) racial violence can often have an in terrorem effect for members of the victim's community; and (5) such violence has an especially pernicious effect on society as a whole.(4)

These are all plausible policy reasons for enacting enhancement laws. But, I submit, they all ignore the brooding omnipresence of the First Amendment. They do, for all Weinstein's denials, "punish a defendant for holding bigoted thoughts and beliefs." Remember the statutory language: "because of," "by reason of."(5)

Is there no way to realize the wish of our society (at least of right-thinking elements of our society) to punish severely crimes that are motivated by bigotry? Yes; relief can be found in sentencing, within the often expansive limits provided for punishment of the underlying offense. The Supreme Court very recently made this clear in Dawson v. Delaware.(6) There, in a death sentence hearing, Dawson's membership in the Aryan Brotherhood, stipulated to be a white racist prison gang, was held irrelevant because Dawson and his victim were both white. But the Court was quite clear that the association, and its attendant beliefs, could have been considered if they had been relevant to the offense.(7)

If that is so, Murphy and Weinstein both ask, why can't the legislature explicitly create an offense of racial intimidation? I will readily concede that it is not very logical to say that you can consider bad motives in sentencing, but not in defining the offense. But I do believe that there is a rational and prudential difference. Sentencing is often a much looser process than guilt determination. It lets the judge hear things that a jury should not hear. An enhancement law invites the jury to pile a second offense on the basic criminal act, with a consequent separate and additional punishment that may significantly exceed the maximum punishment for the basic act. The sentencing court is constrained by the prescribed range for the basic act. To be sure, that range is often very broad (eight to twenty-five years is commonplace, I believe? I am a criminal-law kindergartener).

Sentencing discretion to take account of bigoted motive is more than a loophole; it is a gaping escape-hatch. I am not a bit comfortable about parking it side-by-side with a resolute opposition to enhancement statutes. I do not believe Gellman faced the seeming inconsistency. Perhaps she would want to close the escape-hatch. But there it is.

Weinstein hits again when he asks how one can accept the flourishing coexistence of civil rights and anti-discrimination laws, federal and state, that use the same pivotal language as do enhancement statutes: discrimination in many settings is forbidden if it occurs "because of" a person's race, color, and so on. For me, the crucial difference is that most anti-discrimination laws provide only civil remedies. Weinstein underplays this distinction. Is there not a difference in kind between legislation that only commands you to behave decently or else pay damages, and laws that deprive you of liberty? I agree with Gellman that "Criminalization is the state method of persuasion of last resort."(8)

Weinstein rejoins, tellingly, that some anti-discrimination laws do have criminal penalties, to say nothing of the all-purpose federal civil rights measure that punishes deprivations under "color of law." Maybe we have to think the unthinkable, and challenge the constitutionality of such laws. But not today.

Any reader with any exposure at all to the issues will ask, "What about the Supreme Court? Did it not recently deal with an enhancement law in R.A.V. v. City of St. Paul?(9) The ordinance there made it an offense to bum a cross when doing so "arouses anger, alarm, or resentment in others on the basis of race." The Minnesota Supreme Court understandably found it overbroad, unless it was applied only to "fighting words." Four members of the Court would still strike down the ordinance, even as so limited, for overbreadth; but the majority, speaking through Justice Scalia, found it flawed because it was impermissibly content-based in that it did not proscribe all fighting words. I will avoid disrespect by adopting a characterization of Justice Stevens (joined by Justices White and Blackmun) that the Court had undertaken "something of an adventure in doctrinal wonderland,"(10) as well as another by Justice White (with three Justices joining) that the Court's "decision is arid, doctrinaire interpretation ... mischievous at best and will surely confuse the lower courts."(11) Professor Weinstein draws some comfort from it; I simply do not understand it. I will speculate that if a legislature abandoned its reasons for striking out at hate crimes, passed a law indiscriminately punishing all "fighting words," and a prosecutor then indicted a cross-burner, the conviction might be upheld by the Court. There is truly an air of unreality about this approach. It helps us not at all with the hard questions that Professors Gellman, Murphy, and Weinstein have been grappling with.

They are hard questions. One has to be a First Amendment purist to flatly reject enhancement statutes. The crude behavior that they aim at cries out for deterrence and retribution. But as Gellman argues, and Weinstein agrees--and putting First Amendment purism to one side--these statutes are much too vulnerable to heavy-handed application and to missing their intended targets. R.A.V. was about persecution of blacks, but in Mitchell, the Wisconsin case, the offenders were black.

NOTES

I am not a criminal lawyer, like Professor Gellman, nor a philosopher, like Professor Murphy, nor a constitutional lawyer, like Professor Weinstein. My limited qualification for undertaking these comments, at the polite urging of the Editor, is my recent immersion in the topic as a member of the Free Speech and Association Committee of the American Civil Liberties Union, which was directed to recommend a policy position to the Board of Directors. After eight or ten meetings, I found myself a principal draftsman and proponent of a proposal that was independently almost congruent with the views of Professor Gellman (nothing I say here is attributable either to her or to the Committee). The proposal was rejected by the national Board, essentially as insufficiently responsive to equality concerns. The Free Speech Committee was relieved; perhaps it was perceived as oversensitive to the First Amendment. A Special Committee made another try, which the Board also rejected. The difficulty that such an alert and expert assemblage is encountering reinforces my concluding observation that the issues are difficult. (1) Sticks and Stones Can Put You in Jail, But Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Law, 39 U.C.L.A. LAW REV. 133 (1991). (2) State v. Mitchell, 169 Wis. 2d 153,485 N.W. 2d 807 (1992). Accord, State v. Wyant, 597 N.E. 2d 450 (Ohio 1992). (3) U.S. v. Schwimmer, 279 U.S. 644, at 655 (Holmes, J., dissenting). (4) Weinstein, First Amendment Challenges to Hate Crime Legislation: Where's the Speech? 11 Crim. Just. Ethics 6, at 13. (5) Id. (6) 112 S. Ct. 1093 (1992). (7) Id. at 1097. (8) Gellman, supra note 1, at 391. (9) 112 S. Ct. 2538 (1992). (10) Id. at 2562. (11) Id. at 2560.
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Title Annotation:Penalty Enhancement for Hate Crimes; response to articles by Jeffrie G. Murphy and James Weinstein in this issue, pp. 6, 20
Author:Brown, Ralph S.
Publication:Criminal Justice Ethics
Date:Jun 22, 1992
Words:1769
Previous Article:Intent, motive, and the R.A.V. decision.
Next Article:The ADL Hate Crime Statute and the First Amendment.
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