punishes people nOt for what mey think, but for what they do. It is important that our law not abandon recognized criminal justice standards. In presenting this evidence to a jury, the rules of evidence should apply and the biasmotivation should be proven beyond a reasonable doubt. Simply because a crime occurs berween a perpetrator and a victim of different races, the penalty enhancement should not be amomatically triggered. If that were the standard, then I would say that the criminal justice system would be harmed. There must be evidence of bias-mOtivation that can be presented to the jury in the sentencing phase of a trial. All of this depends on the circumstances, but a prosecutor might look to a history of prejudicial statements the perpetrator made or wrOte before com mining me crime. The prosecutor might also look at the crime scene to determine any evidence of bigotry or bias. In fact, evidence that the perpetrator knew the victim would, in many cases, cut against the use of the penalty enhancement because it would make it less likely that the victim had been selected because of race, religion, ethnicity, or other factors. WOUWN'T SUCH A LAW GIVE "SPECIAL RIGHTS" TO uSPEClAL GRO rs"? No. Hatecrime laws set out cerrain criteria as the motivating factor for committing the crime. These should include qualities we all possess - race, color, national origin, ethniciry, gender, religion, and sexual orientation. I want to reiterate that these are characteristic attributes of all individuals. Unfortunately, many people perceive hate-crime laws as only benefiting minorities. This is nOt true but is a persistent misunderstanding. Any person in this state could become the victim of a hate crime - because of race, because of gender, because of a belief system. A hate-crime law should be neutral or generic in its definition and application. The law should not divide us, but unite us. It must protect all citizens equally and it must punish without discrimination. Aren't hate crimes already being punished by existing laws? No. It is true that me underlying crimes are already being punished, but the bias-motivation is not. Let me give two examples of this. If a perpetratOr vandalizes a car by scratching three X's in the paint, then he has
Any penon in this state could become the victim of ahate crime - because of race, because of gender, because of a belief system. committed a crime and should be punished. However, if the perpetrator scratches three K's in the paint of the ca.r and me owner of the vehicle is black or Jewish or Catholic, then most people would agree that the crime is more than JUSt vandalism. Its intent is to send a message of fear and intimidation. Likewise, if a group of high school seniors goes to a commercial building in me wee hoUIS of the night and paints the phrase, "Class of 200 I", on the exterior of the building, they have committed a crime and should be punished. However, if these same seniors go to a synagogue and paint swasrikas on the exterior of the building, that is a different maner. They are sending a message of fear and intimidation that will ripple mroughout me Jewish community. I think the best and most constitutionally sound hate-crime laws are those that provide for penalty enhancements. Most of the forty-four states that have taken action against crimes of bigOtry have taken this approach. The exact amollnr of enhancement varies widely from state to stare. As lawyers, we understand that criminal penalties are enhanced in dozens of omer circumstances. These include crimes committed on or near school property, committing a felony with a firearm, belonging to a criminal gang, being an habitual offender, or killing a police officer. The reason we enhance penalties in this state is for public policy. Certainly, we are punishing the perpetratOr for the underlying crime, but we feel it necessary as a society to add to me penalty due to the circumS[ances of me crime. Many penalty enhancements go back to the motivation for committing the Penalty crime In the first place. enhancemenrs are designed to act as an additional deterrent to committing these types of crimes.
Arguably, criminal penalry enhancements differentiate among victims. By way of example, if one person is selling drugs on the street corner and another person is selJing drugs at the local junior high school, why should we have a harsher penalty in the second case than we do in the first? It's a matter of public policy. In bom cases, a fifteen-year-old could be purchasing marijuana and so, from mat standpoint, the victims look identical. But our public policy is to have drug-free school campuses and to create safe, positive learning environments. It is nOt that the fifteen-year old purchasing drugs on the srreet corner is any less a victim or any less important, but public policy dictates that the perpetrator does not qualify for an enhanced penalty under that circumstance. Ir is true that a hate-crime law looks at the victim, but that is actually not the focus of the law. The true focus is to punish the perpetrator. In America, we are free to think what we want and say what we want, but when our opinions about certain segments of society motivate us to commit criminal acts, then all of us in society are hun.
ARE
HATE CRIME LAWS CONSTITUTIONAJ.1
Yes. On several occasions, the United States Supreme Court has addressed hate-crime laws. There now exists a body of law mat establishes the parameters necessary to have a constitutional hate-crime act. As with many U. S. Supreme Court decisions, there are a number of factors to address, but it is relatively easy to dran a law that passes conS[irutional muster. Two constitutional questions mat are often raised about hate-crime laws are whether they violate me due process clause and whemer they trample on our rights of free speech. If the law is drafred correctly, it will run into problems on neither from. In WiseollSill v. Mitch,lI, 508 U.S. 476