The overlooked constitutional objection and practical concerns to penalty-enhancement provisions of hate crime legislation.

• Author: Nearpass, Gregory R.

1. INTRODUCTION

   Over the past decade, our nation witnessed the emergence of the term hate crime into the forefront of the American political and legal arena. State legislators across the country, and even within Congress, have been lobbied extensively by special interest groups and parents of hate crime victims, urging their respective governments to pass hate crime legislation. (1) To date, nearly every state has passed some form of hate crime legislation, (2) and there is pending hate crime legislation in Congress as well. (3)

   Generally, hate crime legislation is designed to protect those groups that are the most susceptible to being victims of violent crimes. (4) One way in which this legislation attempts to shield people in these protected classes is by providing enhanced sentencing penalties for people convicted of crimes where the prosecution has established that the underlying crime was committed out of hatred for a protected class. (5) Despite the support that hate crime legislation has received around the country, there are probably an equal number of people who have voiced opposition for hate crime bills and who have argued that hate crime legislation violates the Constitution. (6)

   This comment focuses on the constitutionality of penalty-enhancement provisions contained in hate crime legislation, at both the state and federal level, with particular emphasis on the constitutional challenges that have been raised and the court's treatment of these challenges. Part II explains the sudden burst of enthusiasm for hate crime legislation, the need for enhanced penalties, and why it is difficult to openly criticize hate crime legislation. Part III discusses the constitutional objections that have been raised and the treatment of penalty-enhancement provisions by the courts. Part IV discusses the Supreme Court's Fifth Amendment double jeopardy jurisprudence. Part V discusses how the Fifth Amendment prohibition against double jeopardy can be applied to penalty-enhancement provisions. Part VI explains some practical concerns to penalty-enhancement provisions, including; why prosecutors and district attorneys across the country will soon be calling for the removal of penalty-enhancement provisions. Finally, this comment concludes that penalty-enhancement provisions are unconstitutional and that such provisions violate the Fifth Amendment Double Jeopardy Clause. Additionally, the comment concludes that prosecutors will be calling for the removal of penalty-enhancement provisions for practical reasons outside the constitutional issues

2. CRIES FOR HATE CRIME LEGISLATION

   There are numerous instances over the past decade indeed throughout the history of this country--when violent crime has been directed towards members of a certain class of society. One need only pick up an American History textbook to learn about our harsh treatment towards various groups, including, but not limited to, Native Americans, African Americans, immigrants of all nationalities, and religious groups. Additionally, our country has witnessed violent acts committed towards homosexuals, senior citizens, people with disabilities, and most recently, Arab Americans and Muslims. (7)

   Two recent instances have energized the movement for hate crime legislation and penalty-enhancement provisions--the tragic deaths of Mathew Shepard and James Byrd, Jr.. Mathew Shepard was a twenty-one year-old gay student at the University of Wyoming. (8) In October of 1998, Mathew Shepard was lured out of a bar by two men, who then "pistol-whipped him senseless, lashed him to a fence post and left him in near-freezing temperatures to die." (9) Equally disturbing as the Mathew Shepard story is the plight of James Byrd, Jr., a "black man who was dragged to his death from a pickup truck in 1998 by three white men." (10) More recently, in the immediate aftermath of the September 11, 2001 terrorist attack on America, this country witnessed an increase in the number of violent actions aimed at Arab Americans. (11)

   These acts are, in a word, deplorable, and America should be ashamed, not only of its past, but also of the level of intolerance and violence that still exists in our society today. Yet, what is the appropriate way to address this violence? Some Americans feel that hate crime legislation is the answer--precisely because it provides enhanced penalties for people convicted of committing these acts. Those who advocate for enhanced penalties for hate crimes insist that a crime committed with the specific intent to harm a member of a protected group constitutes a greater offense--justifying a greater penalty. (12)

   Additionally, supporters of hate crime legislation lobby in such a way that those who disagree with their position are automatically labeled non-tolerant--per se bigots--who do not believe in the equality of all people. (13) This controversial yet effective tactic is the main reason why there might never be serious debate about the legalities of hate crime legislation in the halls of Congress and why any disagreement about hate crimes will be relegated to the courts, the media, and to the occasional law review article.

   Indeed, in response to this recent outpour of public support for hate crime protection, many state legislatures have responded by passing hate crime legislation. (14) New York, as one example, passed the Hate Crimes Act of 2000, which became effective on October 8, 2000. (15)

   As a precursor to the substantive components of their hate crime law, New York includes a Legislative Findings section, which attempts to justify the enactment of the law by first noting that hate crimes have become more common in New York. (16) Responding to the perceived need for hate crime legislation, the statute explains, "[h]ate crimes do more than threaten the safety and welfare of all citizens. They inflict on victims incalculable physical and emotional damage and tear at the very fabric of free society." (17) The Legislative Findings section also attempts to explain why hate crimes should be treated differently than the same crime committed in the absence of the requisite element of hate. (18) The section concludes with the following statement: "Current law does not adequately recognize the harm to public order and individual safety that hate crimes cause. Therefore, our laws must be strengthened to provide clear recognition of the gravity of hate crimes and the compelling importance of preventing their recurrence." (19) With such prefacing, how can one possibly be against such a measure?

   After reading the introductory praise, the substantive law details in pertinent part:

   1. A person commits a hate crime when he or she commits a specified offense and either:

   (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or

   (b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct. (20)

   Once conviction of both the underlying offense and the additional element of intent required to constitute a hate crime has been established, then the penalty-enhancement provisions apply to raise the minimum sentence that the defendant can receive. (21) It should be noted that the penalty-enhancement provision applies to all class A-I and B felonies, and in some cases, it can double the minimum sentence that otherwise would be imposed. Following the lead of states such as New York, there is now pending hate crime legislation in Congress, known as the Hate Crimes Prevention Act of 2001 (HCPA). (22)

   The impetus behind federal hate crime legislation is the horrific murders of Mathew Shepard and James Byrd. (23) These two highly publicized incidents have frightened Americans, so much that many believe that hate crimes are a common and constant occurrence throughout the country. (24) However, according to the FBI's Uniform Crime Reports study, hate crimes, on a national level, constituted less than one-tenth of one percent of all crimes in 1999. (25)

   Nevertheless, in response to these recent tragedies and mounting public pressure, Congress has put forth the HCPA, which, in effect, federalizes the issue of hate crimes. (26) What the HCPA proposes to accomplish is an expansion of federal prosecution for hate crimes. (27) It also calls for the enhancement of sentences for convicted criminals when the crime was committed with the intent to injure a specific group. (28) "[T]he law would centralize in the federal government exclusive jurisdiction over all serious crimes alleged to have been committed because of the victim's race, national origin, religion, disability or sexual orientation." (29)

   To date, the HCPA has yet to be passed by Congress. (30) However, its passage seems inevitable, due in large part to the fact that it is nearly impossible to generate any substantive discussion on the constitutionality of hate crime legislation in Congress or in public. In Congress, supporters of the HCPA carry with them the attitude that if you're not with us you're against us, (31) which achieves nothing except to suppress criticism and forces would-be opponents to carefully choose their courses of action. In fact, Senator Charles Schumer (D-NY), co-sponsor of the bill, explained that "[n]o one says hate crimes are overblown now, not after this year of savage crimes." (32) Senator Arlen Specter (R-PA) expresses his support by saying "I can't believe any members of the United States Senate want to be soft on...