Hate Crimes

The enhanced punishment of bias-motivated violence has been criticized on a number of grounds. One critique argues that bias crime laws punish thoughts and not criminal acts. This critique itself takes two forms: a constitutional argument that bias crime laws violate the First Amendment right to free expression of ideas, and a criminal law theory argument that bias crime laws improperly focus on motivation rather than mens rea. An additional critique, which applies only to federal bias crime laws, involves questions of federalism and the constitutional authority for such legislation.

The free expression challenges to bias crime laws were the subject of a great deal of scholarly attention as well as a number of judicial opinions. Judicial consideration of the issue culminated in two Supreme Court decisions, R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), which struck down a municipal cross-burning ordinance, and Wisconsin v. Mitchell, which upheld a state law that provided for increased penalties for bias crimes. Three general positions have emerged among observers concerning the challenge to bias crime laws based in principles of free expression. One position argues that bias crime laws unconstitutionally punish thought because the increased punishment is due solely to the defendant's expression of a conviction of which the community disapproves. A second position permits the enhanced punishment of bias crimes, arguing that bias motivations and hate speech are not protected by the First Amendment. Ironically, these two opposing positions share a common premise: that bias crime laws do involve the regulation of expression.

The third position distinguishes between hate speech and bias crimes, protecting the former but permitting the enhanced punishment of the latter. This has been understood in two related ways. One approach is based on the distinction between speech and conduct, protecting hate speech as the former and punishing bias crimes as the latter. This is the approach adopted by the Court in Wisconsin v. Mitchell. An alternative approach focuses on the perpetrator's state of mind, and distinguishes behavior that is intended to communicate from behavior that is intended to cause focused and individualized harm to a targeted victim.

The critique that bias crime laws punish bad thoughts rather than criminal acts also has been based on criminal law doctrine. This argument criticizes bias crime laws for impermissibly straying beyond the punishment of act and purposeful intent to reach the punishment of motivation. The argument rests on the assertion that motive can be distinguished from mens rea, based on the formal distinction between motive and intent: intent concerns the mental state provided in the definition of an offense in order to assess the actor's culpability with respect to the elements of the offense, whereas motive concerns the cause that drives the actor to commit the offense.

Several responses have been made to this critique. First, as a matter of positive law, concern with the punishment of motivation may be misplaced. Motive often determines punishment. In those states with capital punishment, the defendant's motivation for the homicide stands prominent among the recognized aggravating factors that may contribute to the imposition of the death sentence. For instance, the motivation of profit in murder cases is a significant aggravating factor adopted in most capital sentencing schemes. Bias motivation itself may serve as an aggravating circumstance. In Barclay v. Florida, 463 U.S. 939 (1983), the Supreme Court explicitly upheld the use of racial bias as an aggravating factor in the sentencing phase of a capital case. The Court reaffirmed Barclay in Dawson v. Delaware, 503 U.S. 159 (1992).

A second response to this critique of bias crime laws more broadly questions the usefulness of the formal distinction between intent and motive, arguing that the decision as to what constitutes motive and what constitutes intent largely turns on what is being criminalized. Criminal statutes define the elements of the crime and a mental state applies to each element. The mental state that applies to an element of the crime is "intent" whereas any mental states that are extrinsic to the elements are "motivation." The formal distinction, therefore, turns on the elements of the crime. What is a matter of intent in one context may be a matter of motive in another. There are two equally accurate descriptions of a bias-motivated assault: the perpetrator possessed a (i) mens rea of purpose with respect to the assault along with a motivation of bias; or (ii) a mens rea of purpose with respect to the parallel crime of assault and a mens rea of purpose with respect to assaulting this victim because of group identification. The defendant in description (i) "intends" to assault the victim and does so because the defendant is a bigot. The defendant in description (ii) "intends" to commit an assault and does so with both an intent to assault and a discriminatory or animus-driven intent as to the selection of the victim. Both descriptions are accurate. The formal distinction between intent and motive may thus bear less weight than some critics have placed upon it. Whether bias crime laws punish motivation or intent is not inherent in those prohibitions. Rather the distinction mirrors the way in which the law describes these crimes.

The federalism challenges to the constitutionality of a federal bias crime law arise from the fact that the vast majority of bias crimes are state law crimes that are motivated by bias. The question of constitutional authority for a federal bias crime law is especially pressing after the Supreme Court's decisions in United States v. Morrison, 120 S.Ct. 1740 (2000), striking down the civil remedy provisions of the Violence Against Women Act, and United States v. Lopez, 514 U.S. 549 (1995), striking down the Federal Gun-Free Zones Act. Each decision held that the legislation in question exceeded Congress' authority under the commerce clause. It is partially for this reason that, at the time of writing, there is no pure federal bias crimes statute. Bias motivation is an element of certain federal civil rights crimes such as 18 U.S.C. § 245. Moreover, in 1994, Congress directed the U.S. Sentencing Commission to promulgate guidelines enhancing the penalties for any federal crimes that are motivated by bias. These statutes, however, cover only a small range of cases involving bias motivation.

After Morrison and Lopez, the commerce clause, the constitutional authority for civil rights legislation during the 1960s barring discrimination in public accommodations, housing, and employment, is a more doubtful source for constitutional authority for a federal bias crime law. A more promising source for such authority may lie in the post–Civil War constitutional amendments, at least for bias crimes involving racial, ethnic, and possibly religious motivation. In enacting section 245, Congress expressly relied, in part, upon the Fourteenth and Fifteenth Amendments as authority for the federalization of biasmotivated deprivation of certain specified rights individuals hold under state law. Not all bias crimes deprive the victim of the ability to exercise some right under state law. It has been argued, however, that the Thirteenth Amendment as well provides constitutional authority for a federal bias crime law. The modern view of the Thirteenth Amendment, articulated in Jones v. Alfred H. Mayer, 392 U.S. 409 (1968), and Runyon v. Mc-Crary, 427 U.S. 160 (1976), understands the amendment as a constitutional proscription of all the "badges and incidents" of slavery, authorizing Congress to make any rational determination as to what constitutes a badge or incident of slavery and to ban such conduct, whether from public or private sources. The abolition of slavery in the Thirteenth Amendment, although immediately addressed to the enslavement of African-Americans, has been held to apply beyond the context of race to include ethnic groups and perhaps religions as well. The Thirteen Amendment would not, however, provide constitutional authority for elements of a federal bias crime law reaching sexual orientation, gender, or other categories.