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preme Court in the same term was unanimously of the view expressed by it in the Dawson case, and of the view expressed in the R.A.V. case, if those cases were inconsistent. But they are not.

It seems to me that the St. Paul ordinance invalidated in R.A.V. is simply but wholly distinguishable from the situation considered in this act; and for that reason, this the act would be held constitutional.

I add in conclusion a limiting principle, which I refer to in my statement. I don't have any doubt that at some point the distinction between sentence enhancement based on motive and regulation of underlying abstract beliefs could be so blurred as to be lost. One can posit, as some professors do, situations in which that would be easily seen.

Suppose Congress were considering a statute which provides a 5day jail sentence for an offense and another 5-day add-on if the assault were motivated by racial animus. But suppose what was involved was a 5-year add-on to a 5-day offense? At some point, surely, a line would have been crossed and at the least a very substantial constitutional issue raised.

My view is that H.R. 4797 does not approach that line. It seems to me to fall squarely within the line of cases illustrated by the Court's dictum in the Dawson case, and it seems to me it would in all likelihood pass constitutional muster.

Thank you, Mr. Chairman.
Mr. SCHUMER. Thank you, Mr. Abrams.
[The prepared statement of Mr. Abrams follows:]

PREPARED STATEMENT OF FLOYD ABRAMS, PARTNER, CAHILL GORDON &

REINDEL

SUMMARY OF STATEMENT OF FLOYD ABRAMS

H.R. 4797, the Hate Crines Sentencing Enforcement Act. of 1992, would in all likelihood be held to be constitutional.

The recent ruling of the Supreme Court in R.A.V. v. City of St. Paul established a significant and admirable First Amendment rule that even within the realm of generally unprotected speech such as "fighting words", the state must act in a content-neutral fashion. Neither that ruling nor any other, however, 1s 11kely to be held to shed doubt on the long established general principle that in determining the sentence to be imposed for any crime, the motivation of the criminal is appropriate to consider. That principle has consiatently been applied and approved with respect to racially motivated crimes. Most recently, in its 1992 ruling in Dawson v. Delaware, the Supreme Court unanimously expressed the view that a biased motivation for committing what may be a capital offense may be deemed an aggravating circumstance which could lead to the execution of a defendant.

While there are limits to the proposition that sentence enhancement may consitutionally be based upon racial or similar motivation, H.R. 4797 'seems well within tolerable

constitutional limits.

TESTIMONY OF FLOYD ABRAMS
WITH RESPECT TO H.R. 4797,
THE 'HATE CRIMES SENTENCING

ENFORCEMENT ACT OF 1992"

Mr. Chairman and members of the Committee:

I appear here today, ot your request, to comment upon the constitutionality of H.R. 4797, legislation which provides for sentencing enhancements of not less than 3 offense levels for hate crimes. Although the constitutional issues raised with respect to the legislation are not insubstantial, I believe the legislation is constitutional and would be so held by the Supreme Court.

I appear before you as someone who welcomed and pub

licly praised the Supreme Court's recent ruling in R.A.V. v. City of $t. Paul, striking down a Minnesota law that prohibited the bias-motivated display of a symbol which one has reason to know "arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gonder." While I believe that statute could have been held unconstitutional (as Justice White and three other Justices concluded) as constitutionally overbroad, Justice Scalia's ruling for the Court striking the otatute down on the ground that it was not content-neutral seemed to me not only correct but admirable. And uniquely American. The Plost amendment protects -- as it should good deal of despicable expression, exprossion that we are

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alone in the world in protecting. We should, I think, be proud of our willingneos to tolerate a good deal of some of the vilest speech imaginable. In doing so, we engage in a constitutionally compelled trade-off: we accept the pain caused by the brutallty of some expression for a society that is freer by far for not having banned it. It is not an easy choice; it remains, in my view, a brave and far-sighted one.

But that does not mean that that speech is irrelevant

or inadmissible or improper to consider in sentencing.

It does

not mean that H.R. 4797 13 unconstitutional.

For notwithstand

ing the fact that the Governnent generally may not punish thoughts and ideas in determining if one has committed a crime, consideration of evil motive or moral turpitude in determining an appropriate sentence has long been held permissible. Just as the Government is entitled to exercise Its Judgment with respect to the relative severity of crimes committed under various circumstances, such as the age of the victim or the purpose of the offender, the Government nay constitutionally take unlawful motive into account in determining a sentence. Specifically, when racial hatred is the reason for committing a crime, this information may appropriately be considered in gentencing.

In Dawson v. Delaware, 112 s.ct. 1093 (1992), for example, the Supreme Court determined that evidence showing that the defendant belonged to the white supremicist group called the Aryan Brotherhood was impermissibly submitted during the penalty phase of a capital case since the victim, like the de fondant, was white, and 'elements of racial hatred were therefore not involved in the killing." Dawson, 112 s.ct. at

1098. However, the Court was unanimously of the view that

where evidence of a convicted murderer's biased motivation in

committing a murder 18 relevant to why he or she committed the crime, that motivation may properly be recognized as an aggravating circumstance in sentencing -- even, in fact, in leading

to the death ponalty being inflicted.

In its analysis, the Dawson Court cited an earlier decision, Barclay v. Florida, 46 US. 939 (1983), with approval. It said:

In Barclay, on the contrary, the evidence
showed that the dofendant's membership in the
Black Liberation Army, and his consequent desire
to start a 'racial war,' were related to the mur-
dor of a whito hitchhiker. See 463 U.S., at
942-944, 103 S.Ct., at 34 20-3421 (plurality opin-
ion). We concluded that it was most proper for
the sentencing judge to 'tak(e) into account the
elements of racial hatred in this murder."
( Bmphasio added).

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