Hate is not speech: A constitutional defense of penalty enhancement for hate crimes

Harvard Law Review

Volumn 106, Issue 6, 1993, Pages 1314-1331

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EID: 0002351654     PISSN: 0017811X     EISSN: None     Source Type: Journal    
DOI: 10.2307/1341635     Document Type: Article

References (104)

1. In 1990, Congress passed the Hate Crimes Statistics Act, 28 U.S.C. § 534 (West Supp. 1992), which directed the Attorney General to gather nationwide data on hate crimes. See id. Pursuant to the Act, the FBI reported that 4,558 hate crimes were committed in 1991. See 60 Percent of Hate Crimes Tied to Race, CHI. TRIB., Jan. 5, 1993, at 6. The total included 1,614 incidents of intimidation, 1,301 incidents of vandalism, 796 simple assaults, 773 aggravated assaults, and 12 murders. See id. Large as these figures may appear, they in fact vastly understate the problem: the FBI compiled reports from only 2,771 law-enforcement agencies, as compared to the over 16,000 from which it compiles its Uniform Crime Reports on other crimes. See id.
2. For descriptions of the psychic harms caused by racial stigmatization, see Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 136-39 (1982); Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2336-38 (1989). For simplicity, this Note refers primarily to violence perpetrated because of the victim's race; many penalty-enhancement statutes also punish crimes committed because of the victim's "ethnicity," "national origin," "religion," or "sexual orientation." Crimes committed for these reasons are, of course, equally troublesome, and this Note's arguments apply to them as well.
3. For descriptions of the psychic harms caused by racial stigmatization, see Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name-Calling, 17 HARV. C.R.-C.L. L. REV. 133, 136-39 (1982); Mari Matsuda, Public Response to Racist Speech: Considering the Victim's Story, 87 MICH. L. REV. 2320, 2336-38 (1989). For simplicity, this Note refers primarily to violence perpetrated because of the victim's race; many penalty-enhancement statutes also punish crimes committed because of the victim's "ethnicity," "national origin," "religion," or "sexual orientation." Crimes committed for these reasons are, of course, equally troublesome, and this Note's arguments apply to them as well.
4. State v. Beebe, 680 P.2d 11, 13 (Or. Ct. App. 1984), rev. denied, 683 P.2d 1372 (Or. 1984).
5. See Matsuda, supra note 2, at 2338-39.
6. See, e.g., CAL. PENAL CODE § 422.75 (West 1988); IDAHO CODE §§, 18-7902, 18-7903 (1985); ILL. ANN. STAT. ch. 38, ¶ 12-7.1 (Smith-Hurd 1979 & Supp. 1992); N.Y. PENAL LAW §§ 240.30, 240.31 (McKinney 1989); OHIO REV. CODE ANN. §2927.12 (Baldwin 1992); OR REV. STAT. ANN. §§ 166.155, 166.165 (1991); 18 PA. CONS. STAT. § 2710 (1983); WASH: REV, CODE ANN. § 9A.36.080 (West 1988 & Supp. 1992); Wis. STAT. ANN. § 939.645 (West Supp. 1992).
7. See State v. Wyant, 597 N.E.2d 450, 458-59 (Ohio 1992).
8. See State v. Mitchell, 485 N.W.2d 807, 814-15 (Wis. 1992), cert, granted, 61 U.S.L.W. 3435 (U.S. Dec. 14, 1992) (No. 92-515).
9. See Wyant, 597 N.E.2d at 458-59; Mitchell, 485 N.W.2d at 814-15.
10. 112 S. Ct. 2538 (1992).
11. ST. PAUL, MINN. LEGIS. CODE § 292.02 (1990).
12. See 61 U.S.L.W. 3435 (U.S. Dec. 14, 1992) (No. 92-515).
13. The model statute drafted by the Anti-Defamation League of B'nai B'rith (ADL) exemplifies the penalty-enhancement approach: Intimidation: A. A person commits the crime of intimidation if, by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual or group of individuals, he violates Section_of the Penal Code (insert code provision for criminal trespass, criminal mischief, harassment, menacing, assault and/or any other appropriate statutorily proscribed criminal conduct). B. Intimidation is a_misdemeanor/felony (the degree of criminal liability should be made contingent upon the severity of the injury incurred or the property lost or damaged). CIVIL RIGHTS DIVISION, ADL LEGAL AFFAIRS DEPARTMENT, ADL LAW REPORT: HATE CRIMES STATUTES, app. A (1988) [hereinafter ADL LAW REPORT].
14. See State v. Plowman, 838 P.2d 558, 564-65 (Or. 1992).
15. See State v. Wyant, 597 N.E.2d 450, 456-59 (Ohio 1992); State v. Mitchell, 485 N.W.2d 807, 811-17 (Wis. 1992), cert, granted, 61 U.S.L.W. 3435 (U.S. Dec. 14, 1992) (No. 92-515).
16. Compare Dobbins v. State, 605 So.2d 922, 923-26 (Fla. Dist. Ct. App. 1992) (holding Florida's statute constitutional) with People v. Grupe, 532 N.Y.S.2d 815, 818 (N.Y. Crim Ct 1988) (holding New York's statute constitutional).
17. 597 N.E.2d 450 (Ohio 1992).
18. 485 N.W.2d 807 (Wis. 1992), cert, granted, 61 U.S.L.W. 3435 (U.S. Dec. 14, 1992) (No 92-515).
19. See Susan Gellman, Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws, 39 UCLA L. REV, 333 (1991). Professor Gellman served as lead defense counsel in Wyant. See id. at 333 n.*.
20. See id. at 361.
21. id. at 360.
22. Id. (footnote omitted).
23. State v. Wyant, 597 N.E.2d 450, 453 (Ohio 1992).
24. Id.; see also Gellman, supra note 18, at 363 ("The [ADL] statute does not address effects, state of mind, or a change in the character of the offense, but only the thoughts and ideas that propelled the actor to act.").
25. See Gellman, supra note 18, at 362.
26. Id. at 363.
27. See id.
28. 112 S. Ct. 2538 (1992).
29. See id. at 2543 (arguing that although the Court has declared obscenity, fighting words, and libel to be unprotected by the First Amendment, such prior statements are not "literally true").
30. See id, at 2547-48.
31. See, e.g., Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984) (holding that expression, whether through speech or through conduct, may be regulated by reasonable time, place, and manner restrictions); United States v. O'Brien, 391 U.S. 367, 376 (1968) (holding that a sufficiently important governmental interest may justify regulation of conduct that combines speech and nonspeech elements).
32. See Gellman, supra note 18, at 359.
33. People v. Grupe, 532 N.Y.S.2d 815, 818 (N.Y. Crim. Ct. 1988).
34. Cf. State v. Plowman, 838 P.2d 558, 564 (Or. 1992) (using this hypothetical to justtfy upholding Oregon's penalty-enhancement statute).
35. See Grupe, 532 N.Y.S.2d at 818. Similarly, an attacker who, for example, calls his overweight victim "fat" is not necessarily motivated by the victim's obesity. In Grupe, the court held that the defendant's anti-Semitic epithet could be introduced as "circumstantial evidence that his conduct was motivated by (defendant's perception of) the complainant's religion." Id.
36. 42 U.S.C. §§ 2000e to 2000e-17 (1988).
37. Price-Waterhouse v. Hopkins, 490 U.S. 228, 251 (1989).
38. Id.
39. Id.
40. Dawson v. Delaware, 112 S. Ct. 1093, 1097 (1992).
41. See id. at 1098-99; cf. Schware v. Board of Bar Examiners, 353 U.S. 232, 244 (1957). In Schware, the New Mexico Board of Bar Examiners, which had relied partly on an applicant's past affiliation with the Communist Party, found that the applicant lacked the requisite "good moal character" for admission to the bar. In invalidating the determination, the Supreme Court did not rule that the First Amendment protected his Communist Party association from scrutiny, but rauher that Communist affiliation was insufficient to support the Board's finding of "bad moral character." See id.
42. 463 U.S. 939 (1983).
43. See id. at 942-44.
44. See id. at 949; see also Dawson, 1128. Ct. at 1098 (approving consideration of association in sentencing where "relevant").
45. See Does the Constitution Prevent Enhanced Sentencing of "Hate Crimes?": Hearings on H.R. 4797 Before the Subcomm. on Crime and Criminal Justice of the House Judiciary Comm. (1992) (testimony of Prof. Laurence H. Tribe) (on file at the Harvard Law School Library).
46. Gellman, supra note 18, at 364-65. Even if such technical distinctions between "intent," "purpose," and "motive" were valuable, the use of the terms in practice belies the descriptive accuracy of such distinctions. The differences among these terms are loosely maintained; indeed, three terms are often used interchangeably. The Supreme Court, for example, has stated that Congress "has at times required a specific intent or purpose which will requiere same specialized knowledge or design for some evil beyond the common-law intent to do injury." Morrissette v. United States, 342 U.S. 246, 264-65 & n.25 (1952) (citing Screws v. United States, 325 U.S. 91 (1945)). The Senate Judiciary Committee has explained "specific intent" as follows: "[i]n certain cases, a special motive can be made an element of an offense by specifying that the conduct is not criminal unless a person engages in it for a particular purpose." S. REP. No. 307, 97th Cong., ist Sess. 67 n.16 (1981) (citing Screws) (emphasis added). Finally; the Supreme Court held that a lower court's interpretation of "specific intent" in a criminal civil rights statute, 18 U.S.C. § 52, was impermissibly vague. See Screws, 325 U.S. at 97-100, A vague interpretation, the Court stated, would allow conviction of a state officer for violating a defendant's right to due process even though the officer's "motive was pure and though his purpose was unrelated to the disregard of any constitutional guarantee." Id. at 97 (emphasis added).
47. See Gellman, supra note 18, at 364.
48. See id. at 364-68.
49. See State v. Wyant, 597 N.E.2d 450, 453-57 (Ohio 1992); State v. Mitchell, 485 N.W.2d 807, 812-13, 813 n.11 (Wis. 1992) (quoting from Professor Gellman's article and concluding that "[t]he punishment of the defendant's bigoted motive by the hate-crimes statute directly implicates and encroaches upon First Amendment rights"), cert, granted, 61 U.S.L.W. 3435 (U.S. Dec 14, 1992) (No. 92-515).
50. WAYNE R. LAFAVE & AUSTIN W. SCOTT, JR., CRIMINAL LAW § 3.6, at 228 (2nd ed, 1986), quoted in Gellman, supra note 18, at 364.
51. See, e.g., MODEL PENAL CODE § 221.1 (1962) (defining burglary as an unauthorized entry into a building "with purpose to commit a crime therein"); id. § 223.2(1) (defining theft of movable property as an unlawful taking or exercise of control over another's property "with purpose to deprive him thereof").
52. See Wyant, 597 N.E.2d at 454-55 (distinguishing laws that punish purpose from those that punish motive on the grounds that the former punish an additional criminal act or the attempt to commit it).
53. LAFAVE & SCOTT, supra note 49, § 3.6, at 228, quoted in Gellman, supra note 18, at 364.
54. See State v. Mitchell, 485 N.W.2d 807, 809 (Wis. 1992).
55. Id.
56. 463 U.S. 939 (1983).
57. See Bernd Debusmann, Hate Crime Shocks Washington, Shows Race Problems, Reuters, Mar. 4, 1992, available in LEXIS, Nexis Library, Reuters file.
58. U.S. COMMISSION ON CIVIL RIGHTS, RECENT ACTIVITIES AGAINST CITIZENS AND RESIDENTS OF ASIAN DESCENT 41 (undated) (quoting Michael Tsuchida, Deputy Sheriff, Sacramento County Sheriff's Department).
59. The Wisconsin penalty-enhancement statute punishes crimes committed "because of" a victim's race, religion, or other such characteristics. See WIS. STAT. ANN. § 939.645(1)(b) (West Supp. 1992). The Ohio statute and the ADL model intimidation statute punish crimes committed "by reason of" such characteristics. See OHIO REV. CODE ANN. § 2927.12 (Baldwin 1992); ADL LAW REPORT, supra note 12, app. A. In contrast, Florida's penalty-enhancement statute explicitly punishes crimes that evidence "prejudice." See FLA. STAT ANN. § 775.085 (West 1989) (enhancing penalties for any felony or misdemeanor "if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, or national origin of the victim"). Florida's statute could more convincingly be characterized as directed at punishing bigoted motive; this fact, however, does not necessarily make the statute unconstitutional. See Dobbins v. State, 605 So.2d 922, 924-25 (Fla. Dist Ct. App. 1992) (upholding Florida's penalty-enhancement statute on the grounds that although "motive is implicated" by the statute, the statute is nonetheless constitutional because it is directed at discriminatory acts, not expressive content). This point will be addressed infra at pp. 1323-25.
60. See supra note 12.
61. Although not pursued here, Gellman's contention that the common law does not consider motive is highly debatable. See Samuel H. Pillsbury, Evil and the Law of Murder, 24 U.C. DAVIS L. REV. 437, 460-63 (1990) ("Although the standard view of criminal law holds that motive is legally irrelevant, motivation analysis fits easily within orthodox Anglo-American criminal law. At most it takes a well-recognized mental state inquiry one step farther." (footnote omitted)).
62. See 42 U.S.C. § 1985(3) (1988).
63. Id.
64. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971).
65. Id.
66. 42 U.S.C. § 2000e-2 (1988).
67. 42 U.S.C. §§ 12101-12213 (West Supp. 1992)
68. 29 U.S.C. §§ 621-634 (West Supp. 1992).
69. See 42 U.S.C. § 12112.
70. See 29 U.S.C. § 623.
71. Though bigoted motive is not necessary to support a violation of Title VII, see Griggs v. Duke Power Co., 401 U.S. 424, 432 (1971), it is sufficient.
72. See State v. Mitchell, 485 N.W.2d 807, 820 (Wis. 1992) (Bablitch, J., dissenting) ("How can the Constitution protect discrimination in the performance of an illegal act and not protect discrimination in the performance of an otherwise legal act?"), cert, granted, 61 U.S.L.W. 3431 (U.S. Dec. 15, 1992) (No. 92-515).
73. See State v. Wyant, 597 N.E.2d 450, 456 (Ohio 1992); Mitchell, 485 N.W.2d at 816-17.
74. One possible distinction between the two situations is that the predicate act is itself punishable in the assault context but not in the employment context. This is, however, a distinction without a difference. In fact, the employment discrimination cases suggest that racially discriminatory actions may be made illegal whether or not the "predicate act" is illegal It might be argued that in the case of a discriminatory assault, the defendant is sufficiently punished by the assault law, whereas in the case of employment or housing discrimination, the defendant would go unpunished without a specific proscription of discrimination. But as noted above, the law often adds punishment of motive to the punishment of a crime. See supra pp. 1323-24. Moreover, if discrimination is considered a crime in and of itself, then whether it is punishable does not depend on whether it is accompanied by a separately punishable act.
75. 463 U.S. 939, 944 (1983).
76. Id. at 949.
77. See State v. Mitchell, 485 N.W.2d 807, 824 (Wis. 1992) (Bablitch, J., dissenting), cert. granted, 61 U.S.L.W. Dec. 15, 1992) (No. 92-515).
78. See Recent Case, 106 HARV. L. REV. 957, 961 (1993).
79. See supra note 45.
80. Cf. Mitchell, 485 N.W.2d at 819 (Abrahamson, J., dissenting) (arguing that Wisconsin's penalty-enhancement statute provides adequate protection of speech because it is triggered by an underlying crime and "requires the state to show evidence of bigotry relating directly to the defendant's intentional selection of this particular victim" (emphasis added)). "Causation" does not refer exclusively to "but for" causation. A motive under scrutiny need not have been the sole cause of the crime, but merely a contributing cause. Cf. Price-Waterhouse v. Hopkins, 490 U.S. 228, 240-41 (1989) (holding that under Title VII, employment discrimination "because of" gender does not require that gender bias be a "but for" cause of the employer's conduct. "[T]he critical inquiry . . . is whether gender was a factor in the employement decision . . . ." (emphasis added)).
81. The present analysis applies only to criminal law and, moreover, argues only that the independent/dependent structure is sufficient, not that it is necessary, to insure the constitutionality of motivational analysis. Laws against intentional discrimination - disparate treatment under Title VII, for example - may be seen as imposing civil liability for discriminatory motive in the absence of an independent triggering crime. This fact suggests that the First Amendment does not make the two-step process necessary, at least in the civil context.
82. 391 U.S. 367 (1968).
83. According to the O'Brien Court, a governmental regulation aimed at conduct may Put "incidental limitations" on free speech if: first, the conduct itself is constitutionally regulable; second, the regulation serves a substantial government interest; third, the government's interest is unrelated to the suppression of free speech; and fourth, the limitations on free speech are no greater than necessary to serve the government's interest. See id. at 377.
84. Dawson v. Delaware, 112 S. Ct. 1093, 1098 (1992).
85. See, e.g., Abood v. Detroit Bd. of Educ., 431 U.S. 209, 234-35 (1977) ("[A]I the heart of the First Amendment is the notion that an individual should be free to believe as he will . . . ."); Wooley v. Maynard, 430 U.S. 705, 715 (1977) ("The First Amendment protects the right of individuals to hold a point of view different from the majority . . . .").
86. 112 S. Ct. 1093 (1992).
87. See id. at 1098.
88. The Court stated only that "evidence [must be] relevant to the issues involved [in the case at hand]." Id. at 1097.
89. For example, Delaware allows capital punishment for murder when it is committed for "pecuniary gain." See Dawson, 112 S. Ct. at 1096. Florida allows capital punishment for murder that is "heinous, atrocious or cruel." See Barclay v. Florida, 463 U.S. 939, 949 (1983).
90. See Barclay, 463 U.S. at 949.
91. See id. (finding that racial hatred may make a crime "especially, heinous, atrocious, or cruel"); Pillsbury, supra note 60, at 443 ("In committing a crime the offender inevitably makes a moral statement.").
92. See Pillsbury, supra note 60, at 443 (stating that an offender's "deliberate act . . . presents a challenge to principle. We punish, in part, to defend the challenged principle."); cf. Callanan v. United States, 364 U.S. 587, 593-94 (1961) (defending the law of conspiracy on the grounds that it is "socially reprehensible conduct" and that "the danger which a conspiracy generates is not confined to the substantive offense which is the immediate aim of the enterprise").
93. MODEL PENAL CODE § 210.1 (1962).
94. Id. § 210.2(1)(b) (emphasis added).
95. Cf. State v. Mitchell, 485 N.W.2d 807, 818 (Wis. 1992) (Abrahamson, J., dissenting) (noting that the prosecution in a case under Wisconsin's hate-crimes statute must show causation beyond a reasonable doubt), cert, granted, 61 U.S.L.W. 3431 (U.S. Dec. 15, 1992) (No 92-515).
96. See Department of Agric. v. Moreno, 413 U.S. 528, 534 (1973) (finding that even under mere rationality" review, "a bare congressional desire to harm a politically unpopular group cannot constitute a legitimate governmental interest"). See generally Cass R. Sunstein, Naked Preferences and the Constitution, 84 COLUM. L. REV. 1689, 1696-97 (1984) (arguing that legitimate legislation does not include decisions that merely distribute resources according to political power).
97. Such a statute classifies persons by race, a "suspect classification," which, of course, receives strict judicial scrutiny. See, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 493 (1989) (holding that even facially benign governmental actions based explicitly on race must be strictly scrutinized).
98. Despite many equal protection challenges, no penalty-enhancement statutes have been overturned On equal protection grounds. See, e.g., Mitchell, 485 N.W.zd at 829-31 (Bablitch, J., dissenting) (rejecting the defendant's equal protection claims that were not reached by the majority Opinion); People v. Grupe, 532 N.Y.S.2d 815, 820-21 (N.Y. Crim. Ct. 1988) (rejecting the defendant's equal protection challenge); State v. Beebe, 680 P.2d 11, 13 (Or. Ct. App.) (rejecting equal protection and freedom of expression challenges to Oregon's penalty-enhancement statute), rev. denied, 683 P.2d 1372 (Or. 1984).
99. See Beebe, 680 P.2d at 13 ("Anyone may be a victim of bigotry."). Compare Mitchell, 485 N.W.2d at 807 (reviewing the conviction under a penalty-enhancement statute of a black defendant whose victim was white) with State v. Wyant, 597 N.E.2d 450, 450-51 (Ohio 1992) (reviewing the conviction of a white defendant whose victims were black) and State v. Plowman. 838 P.2d 558, 560 (Or. 1992) (reviewing the conviction of a white defendant whose victims were Hispanic).
100. See, e.g., Loving v. Virginia, 388 U.S. 1, 8, 11 (1967); Brown v. Board of Educ., 347 U.S. 483, 495 (1954).
101. Professor Lawrence has argued that racial discrimination is illegal because it conveys messages of racial superiority. See Charles R. Lawrence III, if He Hollers, Let Him Go: Regulating Racist Speech on Campus, 1990 DUKE L.J. 431, 439-40. In Brown v. Board of Education, 347 U.S. 483 (1954), for example, "separate but equal" public education facilities were found unconstitutional because the system sent a message of racial hierarchy: separation of black children on the basis of their race "generates a feeling of inferiority as to their status in the community" which retards their "educational and mental development." Id. at 494. In Loving v. Virginia, 388 U.S. I (1967), the Court struck down a statute forbidding marriages between white persons and persons of other races. See id. at 12. The state of Virginia insisted that the statute did not violate the Equal Protection Clause because it punished both spouses - White and nonwhite - equally. See id. at 7-8. Nonetheless, the Court struck the law down because it was "designed to maintain the doctrine of White Supremacy." Id. at 11.
102. See R.A.V. v. City of St. Paul, 112 S. Ct. 2538, 2548, 2549 (1992).
103. See id. at 2549-50.
104. See supra p. 1317.