The evolving federal role in bias crime law enforcement and the Hate Crimes Prevention Act of 2007.

• Author: Lawrence, Frederick M.

INTRODUCTION

Debate over the proper role of federal law enforcement concerning bias-motivated crimes, popularly known as "hate crimes," implicates criminal law doctrine and theory, issues of federalism, definitions of equality, and questions of free expression. The highest aspiration of a federal hate crime law is to demonstrate a national commitment to the eradication of a kind of violence that threatens not only our physical safety but our core value of equality. The effort to legislate in this area draws Congress unavoidably into a wide range of doctrinal and constitutional questions. Exploring the ways in which Congress must, and can, navigate the contours of these questions provides a compelling case of the means by which legislation is formed over years, or even decades.

The Local Law Enforcement Hate Crimes Prevention Act of 2007 (1) is the most recent step in the evolving federal statutory response to bias-motivated violence. Although not enacted, by some measures this proposed legislation would have been the most important piece of federal criminal civil rights legislation in nearly forty years, and in some ways, the most important such legislation since Reconstruction. The proposed legislation is a quintessential example of a law that implicates serious and complex questions of criminal law theory and constitutional law. Yet the debate over these questions is frequently driven by emotional arguments from all sides that, however compelling, ultimately miss the mark and distract from a consideration of the legal and philosophical issues at stake. Two illustrative instances of this phenomenon can be drawn from the legislative hearings concerning the Hate Crimes Prevention Act, one involving testimony in support of the proposed legislation and the other argument against.

Perhaps the most emotionally compelling moment of any of the hearings concerning the Hate Crimes Prevention Act was the testimony of an eighteen-year-old, Mexican-American young man named David Ritcheson. (2) In April 2006, one year prior to his testimony, David had been the victim of a brutal bias-motivated attack because of his national origin. The facts as David described them were both gruesome and powerful. He was "sucker-punched" and knocked unconscious by two men who then dragged him into a backyard, stripped him, and beat him. They attempted to carve a swastika into his chest. They called him "wetback" and "spic" during a beating that lasted more than one hour. Alter they had finished beating David, they dragged him to the back of the backyard and left him for dead. He awoke two weeks later in the hospital. Over the following three months, he underwent almost thirty surgeries that helped save his life. (3)

Sadly, the story of David Ritcheson does not end with his triumphal recovery and testimony before a congressional committee. Instead, the story of David Ritcheson reached a tragic conclusion on July 1, 2007, when he jumped to his death from a ship, thus presumably taking his own life. (4)

The danger of testimony such as David Ritcheson's is that lawmakers are inclined to be influenced by the undeniable power of the surface of the story a horrible crime happened and someone should be punished. Yet were that all there is to the story, Ritcheson's testimony would not make the case for a federal bias crime law: the two perpetrators of his assault were convicted of aggravated sexual assault and sentenced to life and ninety years in jail, respectively. Each must serve at least thirty years before becoming eligible for parole. Instead, as will be discussed below, Ritcheson's testimony should be understood as one piece of particularly compelling evidence to understand the subtle but significant connection between the mental state of the perpetrator and the harm caused to the victim of his crime. In this light, the testimony is far less emotionally powerful, but far more legislatively relevant.

The other example of an emotional piece to the debate over the Hate Crimes Prevention Act can be found in the opening statement delivered by Congressman Louie Gohmert (R-TX) at hearings in which he opposed the proposed legislation for, among other reasons, its purported likelihood to lead to the imprisonment of clergy who were opposed to homosexuality on religious grounds. Referring to the provision in the federal criminal code that provides for accomplice liability (5) and its purported interplay with the Hate Crimes Prevention Act, Gohmert said:

You should understand what that means. If a Christian, Jewish or Muslim religious leader teaches or preaches that homosexuality is wrong or is a sin or someone in the leader's flock commits a crime against a person who practices such act, that religious leader may have counseled or induced under the argument and someday someone will say so and ministers will be arrested for their preaching. They will be said to have incited such conduct through their teaching from the Bible, the Torah or Koran. (6) The emotional appeal of Gohmert's argument is patent--such legislation could lead to the incarceration of members of the clergy for nothing more than preaching God's word as they understand it. Underpinning the argument, however, is a significant issue that, although lacking emotional power, implicates an important legal and philosophical issue: to what extent does accomplice liability permit prosecutorial overreaching so as to violate core First Amendment values? Once shorn of the emotional appeal that would preclude careful legal analysis, this issue, as discussed below, is significant for any consideration of bias crime law. (7)

Although I do not ignore the emotional issues that are touched by bias crime legislation, this Article will focus on four interrelated questions that, while remaining concerned with legal, not emotional issues, nonetheless deal with fundamental American values. These questions are:

* Is it appropriate for a criminal law to punish on the basis of a perpetrator' s motivation?

* Should gender, sexual orientation, gender identity, and disability be included in a federal bias crime law?

* Are bias crime laws consonant with principles of free expression?

* Is a prominent federal role in the prosecution and punishment of bias crimes consistent with the proper division of authority between state (and local) government and the federal government in our political system?

I offer a firm answer in the affirmative as to each of these questions. Bias motivation is the key reason that bias crimes cause the harm they do. The resulting harm of a bias crime exceeds that of a similar crime lacking bias motivation on three levels: the nature of the injury sustained by the immediate victim of a bias crime; the palpable harm inflicted on the broader target community of the crime; and the harm to society at large. Gender-motivated violence and crimes targeting victims on the basis of sexual orientation, gender identity, and disability are as much bias crimes as are racially--and ethnically--motivated crimes. A broadened federal bias crime statute is warranted as a matter of constitutional law and public policy. As a matter of free expression, bias crime laws punish not the holding of beliefs or the expression of ideas, but the extension of these beliefs and ideas into violent behavior intended to cause harm to its victims. Moreover, there is constitutional authority for Congress to enact the law and it is part of our commitment to the equality ideal. Not all will agree on what exactly "the equality ideal" means. But none can deny that the commitment to equality is a core American principle. Bias crimes thus violate the national social contract--not only that of the local or state community--and require a federal response.

Finally, I suggest that the lessons learned in the debate concerning the Hate Crimes Prevention Act of 2007 help us see a path not only toward more effective enforcement of bias crime law enforcement, but also a path toward bias crime legislating, and perhaps, therefore, legislating more generally.

1. MOTIVATION AS AN ELEMENT OF BIAS CRIMES

   Bias crimes are distinguished from "parallel crimes" (similar crimes lacking bias motivation) by the bias motivation of the perpetrator. A "gay bashing" is the parallel crime of assault with bias, motivated on the basis of sexual orientation. A cross-burning on the lawn of a black family is the parallel crime of vandalism or criminal menacing with racial motivation. Ordinarily, the criminal law is far more concerned with the perpetrator's culpability--did he, for example, act purposely, recklessly, negligently, or only accidentally--rather than the actor's motivation for his criminal acts. In the case of bias crimes, however, as with a select group of crimes where motivation is deemed relevant, motivation is a critical and valid part of the definition of a crime.

   Motivation is a critical part of the definition of bias crimes because, as the case of David Ritcheson illustrates, it is the bias motivation of the perpetrator that causes the unique harm of the bias crime. The resulting harm of a bias crime exceeds that of a parallel crime on three levels: the nature of the injury sustained by the immediate victim of a bias crime; the palpable harm inflicted on the broader target community of the crime; and the harm to society at large. As a descriptive matter, I will examine these types of harm, which are particular to bias crimes. I will then turn to the normative question of whether motivation may be punished. This normative question, one of criminal punishment theory, is distinct from the related question of whether punishment of bias crimes is consonant with the First Amendment right to free expression, which I shall address later on in this Article.

   1. Motivation and the Harm Caused by Bias Crimes

      1. Impact of Bias Crimes on the Immediate Victims

         Bias crimes may be distinguished from parallel crimes on the basis of their particular...