Federal Hate Crimes Law example essay topic

... ng Rehnquist logic in Mitchell, the state of Texas could have easily achieved their goal by prohibiting public burning, a legitimate exercise of their police power, and enhancing the penalty for those convicted of violating the statute if they did so in opposition to the government (Gellman, 380). Therefore, penalty enhancement laws such as Wisconsin's give the government too much power to excessively punish what it deems unacceptable. Clearly, when the legislature enacts penalty enhancement laws with the intent of suppressing unpopular ideas, the state violates both the First and the Fourteenth Amendments. The state interferes with an individual's right to free speech by suppressing ideas not supported by the government, and fails to provide equal protection to all its citizens when it punishes an act more severely when committed by an individual whose opinions are not shared by the state. Mitchell vs. Wisconsin is a clear example of majority will infringing upon minority rights, and proves that the Bill of Rights works well, except in the instances when it is most needed.

There are probably more Supreme Court cases that favor Wisconsin's position than there are that support Mitchell's argument. However, many of these rulings are of questionable constitutionality themselves. Two cases arguably support Rehnquist's position, but the Supreme Court has traditionally ignored the first of rulings, and the second has been misinterpreted. In Chaplinsky vs. New Hampshire, Justice Murphy wrote what has become known as the 'fighting words doctrine'. Chaplinsky was a Jehovah's Witness in a predominantly Catholic town. He distributed leaflets to a hostile crowd, and was refused protection by the town's marshal.

Chaplinsky then referred to the marshal as a 'god damn racketeer and a damn fascist', for which he was convicted of breaching the peace. Justice Murphy's opinion argued that certain speech, including that which is lewd, obscene, profane, or insulting, is not covered by the First Amendment. According to Murphy, 'There are certain well-defined and narrowly limited classes of speech, the prevention and punishment of which has never been thought to raise any Constitutional problem. These include the lewd and obscene, the profane, the libelous, and the insulting or fighting' words those which by their very utterance inflict injury or tend to incite an immediate breach of the peace.

' Under Chaplinsky, bigoted remarks would probably qualify as fighting' words. However, the courts have generally been reluctant to uphold the fighting' words doctrine, and the Supreme Court has never done so (Gellman, 369,370). Even if today's Court were to consider Chaplinsky valid, Mitchell's comments, though racial in nature, would be difficult to classify as bigoted. In fact, Constitutional considerations aside, the biggest problem with penalty enhancement laws such as Wisconsin's, is classifying and prosecuting an incident as hate-motivated (Cacas, 33). At what point can we be certain the victim was selected based on race, religion, or sexual orientation?

Another more pressing problem is police unwillingness to investigate a crime as hate-motivated (Cacas, 33). Certainly, the difficulty in determining whether a crime is hate-motivated is one of the reasons police are hesitant to pursue crimes as hate-motivated, and illustrates yet another reason why such statutes should not exist. Consider the following FBI guidelines to help determine whether a crime is hate-motivated (Cacas, 33): 1. a substantial portion of the community where the crime occurred perceives that the incident was bias-motivated; 2. the suspect was previously involved in a hate crime; and 3. the incident coincided with a holiday relating to, or a date of particular significance to, a racial, religious, or ethnic / national origin group. These guidelines certainly fail to offer any exact or definitive system with which to classify crimes as hate-motivated. Another case that is sometimes cited as a precedent to support rulings such as Wisconsin vs. Mitchell is U.S. vs. O'Brien. O'Brien had burnt his draft card to protest the draft and the Vietnam War, despite a law specifically forbidding the burning of draft cards.

The Supreme Court ruled that the statute did not differentiate between public and private draft card burnings, and was therefore not a government attempt to regulate symbolic speech, but a constitutionality legitimate police power. The Court ruled that there is no absolutist protection for symbolic speech. Under O'Brien, the government may regulate conduct which incidentally infringes upon First Amendment rights, as long as the government interest is 'unrelated to the suppression' of belief or expression. However, when states enact laws such as the Wisconsin statute, the state is not regulating conduct despite its expressive elements, but is penalizing conduct because of its expressive elements (Gellman, 376). Therefore, a more accurate interpretation of O'Brien would be that it actually supports an argument against the Court's ruling in Wisconsin, and is not a precedent to support Rehnquist's decision.

Possibly more important, and certainly more recent, is the precedent established in R.A.V. vs. St. Paul, a 1992 case. This case involved a juvenile who was convicted under the St. Paul Bias-Motivated Crime Ordinance for burning a cross in the yard of a black family that lived across the street from the petitioner. Justice Scalia delivered the opinion of a unanimous Court, but the Court was divided in its opinions for overturning the St. Paul statute. Scalia argued that the city ordinance was over broad, because it punished nearly all controversial characterizations likely to arouse 'resentment' among defined protected groups, and under-inclusive, because the government must not selectively penalize fighting words directed at some groups while not prosecuting those addressed to others, which is where the problem lies in the logic of the Mitchell decision.

Though Rehnquist argued that Wisconsin vs. Mitchell did not overturn R.A.V. vs. St. Paul, 'If a hate speech law that enumerated some categories is invalid because, in Justice Scalia's opinion in St. Paul, government may not regulate use based on hostility- or favoritism- toward the underlying message involved, how can a hate crime law be upheld that increases the penalty for crimes motivated by some hates but not those motivated by other hates?' In other words, if the St. Paul statute is determined to be under-inclusive, how can we include every conceivable hate within the context of any statute. 'To be consistent, legislature's must now include other categories, including sex, physical characteristics, age, party affiliation, anti-Americanism or position on abortion. ' (Feingold, 16) More interesting (and Constitutional) than the majority opinion in R.A.V. vs. St. Paul, is the concurring opinion written by Justice White, with whom Justice Blackmun and Justice O'Connor join. White writes, 'Although the ordinance as construed reaches of speech that are constitutionally unprotected, it also criminalizes a substantial amount of expression that- however repugnant- is shielded by the First Amendment...

Our fighting words cases have made clear, however, that such generalized reactions are not sufficient to strip expression of its constitutional protection. The mere fact that expressive activity causes hurt feelings, offense, or resentment does not render the expression unprotected... The ordinance is therefore fatally over broad and invalid on its face... ' Rehnquist argues that whereas the 'ordinance struck down in R.A. V was explicitly directed at expression, the statute in this case is aimed at conduct unprotected by the First Amendment'. Nevertheless, had Mitchell not stated, 'There goes a white boy; go get him', his sentence would not have been enhanced, he would have instead received the maximum sentence of two years in jail for his crime, instead of four. Therefore, the Wisconsin statute does not only punish conduct, as Justice Rehnquist suggests, but speech as well.

The Wisconsin vs. Mitchell decision cannot simply be viewed as one that does harm to racists and homophobic's. There are much broader costs to society than the quieted opinions of an ignorant few. First, laws that chill thought or limit expression 'detract from the goal of insuring the availability of the broadest possible range of ideas and expressions in the marketplace of ideas. ' Second, the Mitchell ruling not only affects everyone's free speech rights with a general constriction of the interpretation of the First Amendment, but the ruling makes way for further constrictions.

Third, penalty enhancement laws place the legislature in the position of judging and determining the quality of ideas, and assumes that the government has the capacity to make such judgments. Fourth, without the expression of opinions generally deemed unacceptable by Society, society tends to forget why those opinions were deemed unacceptable in the first place. (More specifically, nothing makes a skinhead seem more stupid than allowing him to voice his opinion under the scrutiny of a national television audience.) Finally, when society allows the free expression of all ideas, regardless of its disdain for those ideas, it is a sign of strength. So when a society uses all its power to suppress ideas, it is certainly a sign of that society's weakness (Gellman, (381-385).

The United States Supreme Court's unanimous decision in Wisconsin vs. Mitchell is incorrect for a number of reasons. Constitutionally, the decision fails to comply with the freedom of speech guaranteed in the First Amendment, and the guarantee to all citizens of equal protection under the laws, listed in the Fourteenth Amendment. The decision also arguably overturns R.A.V. vs. St. Paul, and suggests that the Court may be leaning towards a new fighting words doctrine', where unpopular speech equals unprotected speech. The decision also damages society as a whole in ways that are simply immeasurable in their size, such as those listed in the preceding paragraph. Wisconsin vs. Mitchell is a terribly flawed Supreme Court decision, which one can only hope will be overturned in the very near future. Roughly 40 states today have hate crimes laws on the books, many of which are enhancement statutes.

Some are quite broad. New York, for example, covers hate crimes on the basis of race, religion, gender, sexual preference and age. The ostensible motive of New York and other states is to send a message to the racists and bigots of the world that they won't tolerate racism and bigotry. On January 26, 1999, State Senator Rodney Ellis and Representative Senfronia Thompson filed Senate Bill 275 and House Bill 938 that offer comprehensive approach to addressing the hate crime in Texas. The legislation was named for James Byrd, Jr., an African American who was brutally murdered during a hate crime in Jasper, in June 1998. Why should Texas have a Hate Crimes Act?

We need to create strong, clear and enforceable hate crime laws that will increase penalties for crimes motivated by prejudice or bias based on race, ethnicity, religion, disability and sexual orientation. Hate crimes deserve stiffer penalties because the crimes are designed to terrorize and intimidate whole groups of people simply because of who they are. Hate Crimes go beyond a crime against an individual, to strike terror into every individual who is a member of the targeted group. Example: If a synagogue is vandalized with swastikas and burned, every Jewish person is terrorized by this crime. Hate crimes affect all people. This act will protect people of all races, all ethnicity, all religions, and all sexual orientations.

Hate crime laws are not special rights but rather have universal application. We need to treat hate crimes differently. Texas for example increased penalties for all sorts of crimes; crimes against the police, children, the elderly, the disabled, state and federal employees, prison wardens, and a proposed tough penalty law on crimes against pregnant women. There is even a law increasing the penalty for vandalism against oil wells. Opposition only arises when we discuss imposing stiffer penalties for hate crimes and it is time for that to stop. California already has a hate crimes law, but that didn't stop Furrow from opening fire on a group of Jewish children in a Los Angeles community center, then killing a Filipino-American letter carrier.

Illinois hate crime law didn't deter Benjamin Smith from a shooting spree that left nine people wounded and two dead - all Jewish, black, or Asian. Of the three men who so savagely killed Byrd, two have been sentenced to death and one is to spend the rest of his life behind bars. Both of Shepard killers have also been sentenced to life. One of them, Aaron McKinney, was facing a death sentence when Shepard's parents proposed a deal- two life sentences in exchange for a permanent gag order that prevents McKinney or his lawyers from ever appealing the verdict or discussing the case in public. In the Bedford case, meanwhile, federal prosecutors in California are seeking the death penalty. There is no way around it: a law that cracks down harder on criminals who harm members of certain groups by definition goes easier on those who target victims from other group.

If a gang of skinheads decides to crack some black or Jewish skulls, the bill would empower federal prosecutors to go after them. Equal protection of the law must apply to all Americans. The Clinton-Gore Administration and congressional Democrats publicly pushed for the House to pass the hate crimes bill that the Senate adopted. It would expand the current federal statute which provides harsher penalties for various crimes if motivated by race, religion, or national origin to cover a longer list of crimes, including those motivated by sexual orientation, gender, or disability. The Hate Crimes Prevention Act would expand federal jurisdiction to reach serious, violent hate crimes. Under the bill, hate crimes that cause death or bodily injury or which are perpetrated with a firearm or explosive device can be investigated federally, regardless of whether the victim was exercising a federally protected right.

The bill describes a 'hate crime' as a violent act causing death or bodily injury 'because of the actual or perceived race, color, religion, national origin, sexual orientation, gender, or disability' of the victim. These are the same protected categories that are already in federal hate crimes law. (Existing law provides enhanced penalties for hate crimes that are committed on federal property, such as Indian reservations or national parks.) One might even ask, if hate crimes laws are unnecessary. What harm can they do? By blending punishment for constitutionally protected (if bigoted) thoughts and speech together with punishment for violent criminal acts, hate crimes statutes smuggle into the law an unwholesome dose of thought control, which puts defendants on trial for their opinions along with their actions. Hate crime laws divert trials from the straightforward task of determining who did it into an elusive quest to identify the defendants inner thoughts a quest complicated by the realities that motives are often mixed and bias is rarely the main one.

The federal hate crimes statue undermines constitutional protections against double jeopardy by forcing defendants who have already been prosecuted in state court to face successive prosecution in federal court for the same acts. Moreover, political pressure and victim-group lobbying sometimes spur federal authorities to bring unwarranted prosecutions. The federal statue also intrudes into local matters unrelated either to interstate commerce or to official unrelated either to interstate commerce or to official discrimination. For this reason, both the current statute and the pending bill may be unconstitutional (in whole or in part) under the logic of the Supreme Courts decision striking down a key provision of the Violence Against Women Act.

Now federal hate crimes legislation may be politically unstoppable in the long run. If so, the best course would be to expand the laws coverage enough to reflect the fact that all violent crimes are in a sense hate crimes. That would make every crime victim special. And when every victim is special, no victim group is specially privileged. ' The freedom to differ is not limited to things that do not matter much. That would be a mere shadow of a freedom.

The test of its substance is the right to differ as to things that touch the heart of the existing order. 'If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion or other matters of opinion... ". Justice Jackson in W.V. Board of Education. vs. Barnette.

Bibliography

Brodsky, Sascha. Reality Behind The Statistics / Many hate crimes go unreported. Newsday, 07-08-1999, pp A 06 Chaplinsky vs.
New Hampshire (315 U.S. 568) Cacas, Samuel. 'Hate Crime Sentences Can Now Be Enhanced Under A New Federal Law. ' Human Rights 22 (1995): 32-33 Dennis, Valerie.
MTV remembers Matthew Shepard with 17-hour program on hate crimes, University Wire, 01-10-2001 Feingold, Stanley.
Hate Crime Legislation Muzzles Free Speech. ' The National Law Journal 15 (July 1, 1993): 6, 16 Franke-Fol stad, Kim.
Denver Rocky Mountain News Staff Writer, HATE-CRIME LAWS NOT A BLACK-WHITE ISSUE. Denver Rocky Mountain News, 01-18-1999, pp 6 Gellman, Susan.
Sticks And Stones. ' UCLA Law Review 39 (December, 1991): 333-396 Patrick, Robert F.
Cops find hate often has broad definition, The Washington Times, 04- 02-01, pp C 1 R.A.V. vs. St. Paul (505 U.S. 377) Texas vs. Johnson (491 U.S. 397) The Associated Press, Reno Fights Hate Crimes, Newsday, 01-09-1998, pp A 21 The Christian Science Publishing Society 30 Brad Knickerbockers, Staff writing of The Christian Science Monitor, Hate Crimes: Should they receive special attention? The Christian Science Monitor, 06-23-200, pp 22 U.