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Dawson, 112 S.Ct., at 1098. under different facts than in Dawson, the Court observed, evidence concerning a defendant's biased motivation "might be relevant in proving other aggravating circumstances' since "[t]he Constitution does not erect a per se barrier to the admission of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment." Dawson, 112 s.ct., at 1097-1098.

The Court had arrived at a similar result in United States v. Abel, 469 0.8. 45 (1984). There, the Court held that the Government could impeach a defense witness by showing that both the defendant and the witness were members of the Aryan Brotherhood, and that members were sworn to lle on behalf of each other. The Court held the evidence admissible to show bias, even assuming that membership in the organization was among the associational freedome protected by the Pirst Amendment. Abel, 469 v.s., at 49.

The Court has thus clearly indicated that motive, and more specifically racial hatred, , is an appropriate consideration in sentencing. Further, the first Amendment has bAAN hold to be not unduly burdened when otherwise protected statements


are used as circumstantial evidence to show that conduct was motivated by hatred, bias, or prejudice.

That, of course, does not necessarily end our analysis. As I mentioned earlier, in the R.A.V. case, accepting the Minnesota Supreme Court determination that the ordinance reached only expressions that constituted 'fighting words', the Court held that the government may not constitutionally ragulate even otherwise unprotectod speech on the basis of hostillty towards the idea expressed by the speaker. R.A.V., 1992 WL 135564, at 9. In short, regulation of abstract thoughts, beliefs, or ideae, however repugnant they are, is unconstitutional. See Texas v. Johnson, 491 0.5. 397, 414 (1989). The Government surely is barred from penalizing the expression of an idea simply because society finds the idea itself offensive or disagreeable; selective proscription is valid only where "there 18 no realistic possibility that regulation of ideas is a foot.: R.A.V., 1992 WL 135564, ,at 6.

The question, then, is what we should take from cases such as Dawson and R.A.V. when those cases (and the principles embodied in them) are considered with regard to H.R. 1797. My view is that the St. Paul ordinance invalidated in R.A.V. is plainly distinguishable from the Hate Crimes Sentencing


Enhancement Act. Whereas the city of St. Paul passed a separate statute that criminalized fighting words containing certain messages of bias-motivated hatred, here there is nothing but enhancement of penalties for other criminal conduct when it is bias-related or bias-motivated. Enhanced punishment of a defendant on the basis for his or her motive is generally constitutional notwithstanding that no criminal action could have been commenced based upon the evil motive alone. See People v. Grupe, 532 N.Y.S.2d 815 (n.y. Crim. Ct. 1988).

What I have just said requires some limiting principles. I have no 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. Consider the following 11lustration. Suppose that the Congress 1s deciding whether to enact one of two statutes. The first statute provides a five day jail sentence for an offense and adds another five days to the sentence if the assault were motivated by racial animus. The second statute also criminalizes the substantive offense and imposes a five day sentence, but provides for a sentence enhancement of five years rather than five days. In both cases, motivation is plainly relevant to sentencing of the underlying criminal conduct. the first statute seems plainly constitutional under Dawson,



whereas the second might well - and probably should bo hold unconstitutional since its thruet (because of its penalty provision) may be deemed the effectuation of a content based regulation of beliefs. No one ever promised that the lot of an appellate judge was easy; in this area courts must be vigilant not to allow supposed sentence enhancement to swallow up the First Amendment protections articulated in R.A.V. and other cases. It may also be that, as applied, some sentence enhancement proceedings nay overstep conçtitutional boundo.

Nonethelese, viewing H.R. 4797 on its face, I believe it is constitutional. It seems to fall squarely within the line of cases illustrated by the court's dictum in Dawson and

would, for that reason, likely pass constitutional muster.

I do have a few suggestions. I would prefer it if instead of establishing guidelines that require sentence enhancements of not less than 3 offense levels for hate crines, the legislation permitted such enhancements. I would also recommend that instead of providing for sentence enhancements of "not less than 3 offense levels" (leaving entirely open-ended the degree of sentence enhancement), the legislation simply permitted enhancements of up to 3 levels.

I would suggest, as well, careful consideration of whether potential vagueness challenges could be avoided. Some state courts have found their hate crime statutes to be impermissibly vague, and have held the statutes to be neither sufficiently definite to give persons of ordinary intelligence who wish to abide by the law adequate notice of the proscribed conduct, nor adequate to provide standards for those who enforce the laws and adjudicate guilt. See o.g., State v. Van Gundy, 1991 Ohio App. LEXIS 2066 (Ohio Ct. App. 1991); People v. Justice, No. 1-0--1793 (Mich. Dist. Ct. 1990). But cf., State of Oregon v. Hendrix, 813 P.2d 1115, (Ore. 1991).

To avoid H.R. 4797 being attacked on similar grounds, it might be well, for example, to consider specifying whether the term “actual or perceived race, ... or sexual orientation of another individual or group of individuals' refers only to the background of the victim, or 'might apply to someone else as well. The Act plainly covers cases where the offender is of a different background than the victim, but nay also include cases where background is only tangentially related to the offense. For example, someone may react adversoly to the white person of an interracial couple, or two whites might fight over the treatment of a member of a suspoct class. Such an issue might be dealt with in legislative history (something which

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