found disagreement with them, but I am this time. I take it their argument is that, because the Government might go too far in using evidence of a defendant's statements and beliefs and associations in trying to prove a racial or otherwise proscribed motive, this law is either vague or overbroad on its face, or facially defective because it does not expressly tell the Sentencing Commission and sentencing judges what procedures to use in order to guarantee that freedom of speech and freedom of thought will not be dangerously chilled. That is a very interesting theory, but there is no-I underline "no" constitutional requirement that special guarantees must be devised, in advance of any specific case, to eliminate every possible risk that administrators or judges, when applying a law that does not regulate speech or expression as such, might manage to violate the first amendment. That risk exists all the time. Otherwise, every law that treats a defendant's mental state as relevant to criminality or sentencing would be facially unconstitutional in the absence of special prophylactic safeguards. That is not the law. As recently as several months ago, in Dawson v. Delaware, the Supreme Court unanimously reaffirmed the Court's own decision in Barclay v. Florida, which had held that the sentencing judge in a capital case could properly consider the elements of racial hatred in a black defendant's killing of a white hitchhiker. The Court in Dawson was divided 8 to 1 on another issuewhether the membership of Dawson, who was a white defendant in a white supremacy organization, the Aryan Brotherhood, was relevant to the sentencing proceeding. His victim, after all, had been white. I am glad to say that only Justice Thomas believed the evidence was relevant to help establish future dangerousness, and I agree that in this case there was a threat to free speech, but no one on the Court remotely suggested that the sentencing laws were facially unconstitutional or would have to be rewritten to avoid the possibility that a case like Dawson might recur. The solution to that first amendment problem is to cross that bridge when you come to it. The extension of facial overbreadth doctrine of which I am a fan-to an area utterly outside of speech would be the beginning of the end, because once you begin applying these special procedural doctrines, which are barely supported by a majority of the Court in the area of speech, to other areas of criminality, I think we will spell the doom of doctrines without which free speech will be gravely jeopardized. So in my view H.R. 4797 is clearly and unequivocally, as written, a constitutional exercise of Congress' power. I am sorry to have gone on so long. Mr. SCHUMER. Don't apologize. We really appreciated your testimony. I think it proves the old adage that when you know your subject very well, you can keep it simple so that everyone can understand it. I mean that as a real compliment. [The prepared statement of Mr. Tribe follows:] DOES THE CONSTITUTION PREVENT ENHANCED SENTENCING TESTIMONY OF LAURENCE H. TRIBE Tyler Professor of Constitutional Law on H.R. 4797, before the Subcommittee on Crime July 29, 1992 I am honored to appear before the Subcommittee on Crime and Criminal Justice at the invitation of Chairman Jack Brooks of the House Judiciary Committee to address the constitutionality of H.R. 4797, the "Hate Crimes Sentencing Enhancement Act of 1992." I understand that some have raised questions about whether the Act might violate the First Amendment in light of the U.S. Supreme Court's decision this June 22, 1992, in R.A.V. v City of St. Paul. I believe that this decision poses no serious constitutional problem for the Act. Enhancing a criminal sentence for any "hate crime", defined as "a crime in which the defendant's conduct was motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, [etc.] of another individual or group of individuals," in no way creates a "thought crime" or penalizes anyone's conduct based upon a non-proscribable viewpoint or message that such conduct contains or expresses. In this crucial respect, the trigger for enhanced punishment under the proposed Act differs completely from the constitutionally problematic trigger for punishment under the St. Paul ordinance struck down by the Supreme Court in the R.A.V. case. It is certainly true that the evidence tending to show that a defendant's conduct was in fact motivated by racial or similar hatred or bias might in a particular case include statements made by the defendant before, during, or after the alleged conduct. But nothing in the R.A.V. decision creates a constitutional exclusionary rule requiring government to be blind to words and statements insofar as they shed light on a constitutionally permissible element of an offense. In many criminal prosecutions, the statutorily required mens rea or mental state may be evidenced in significant part by communications that could not independently be punished by virtue of their content. For example, it would certainly violate the First Amendment to punish X simply for saying, "I wish Y were dead; my life would be a lot easier without interference from that S.O.B." It does not follow, however, in a prosecution of X for the premeditated murder of Y, that the First Amendment precludes proving the element of premeditation in whole or in part through evidence about X's statement. 2 Nothing in the holding or rationale of the R.A.V. decision suggests that a state or the United States must be neutral as between racially or religiously or sexually motivated assaults or other offenses, and otherwise identical conduct that lacks this sort of motive. The First Amendment's commitment to a society in which government may never target particular disfavored views or topics for special punishment hardly entails a commitment to a society in which government is indifferent to the special evil of attacks motivated by hatred or bias based on race, religion, nationality, ethnicity, gender, or sexual orientation. were to require Title VII of the Civil On the contrary, if the First Amendment, or any other provision of the Bill of Rights, governmental indifference to the racial or otherwise bigoted motive underlying a hurtful act, it would follow that an enormous body of anti-discrimination law, both state and federal, would be unconstitutional. Rights Act of 1964 for example, and similar state antidiscrimination laws and local anti-discrimination ordinances, render unlawful a wide variety of actions by employers (such as refusals to hire, or decisions to terminate employment, or certain forms of harassment) when, and only when, those actions are motivated by the employee's race, gender, religion, or other special status. If R.A.V. were to cast a constitutional shadow over the Hate Crimes 3 Sentencing Enhancement Act, precisely the same shadow would befall this entire corpus of anti-discrimination law. In recently reaching a contrary conclusion regarding a state "hate crimes" statute, a majority of the Supreme Court of Wisconsin attempted to reconcile its holding with the continued validity of such anti-discrimination laws. See State v. Mitchell (June 23, 1992). The attempted reconciliation was completely unconvincing. Among other things, the state court majority found it necessary to suggest that such anti-discrimination provisions pass constitutional muster only when they include purely civil penalties, for then they supposedly represent merely "slight incursions into free speech where the overarching concern is protection from objective acts of bigotry in the employment marketplace." Justice Bablitch, dissenting from the state court's conclusion, was right in finding "no support in law or logic" for the majority's distinction. There is simply no answer to the dissenter's telling questions: How can the Constitution not protect discrimination in the selection of a victim for discriminatory hiring, firing, or promotional practices, and at the same time protect discrimination in the selection of a victim for criminal activity? 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? How can the Constitution not protect discrimination in the marketplace when the action is taken "because of" the victim's status, and at the 4 |