-9

Justice Scalia, for one, would surely disapprove of) or in text. I cite it now by way of illustration simply to urge the Committee to assure itself that vagueness cannot be the basis of a successful constitutional challenge.

In the end, the constitutionality of H.R. 4797 is

likely to be determined on the basis of the well-established rule that motive is relevant in sentencing.

-

and should be

That being so, I believe H.R. 4797 would be held constitu

tional.

Mr. SCHUMER. Ms. Gellman.

STATEMENT OF SUSAN GELLMAN, ASSISTANT PUBLIC DEFENDER, OHIO PUBLIC DEFENDER COMMISSION, AND ADJUNCT PROFESSOR, CAPITAL UNIVERSITY LAW SCHOOL

Ms. GELLMAN. Thank you, Chairman Schumer, members of the subcommittee.

The persistence of bigotry and bigotry-related crime in our society is a tragedy, a tragedy that demands action. But even when addressing such a serious problem as this, Congress must obey the Constitution.

H.R. 4797, in its present form, is unconstitutional, and the Supreme Court's recent opinion in R.A.V. gives the strongest indication that the Court would invalidate this law as well.

In R.A.V., the Court explicitly and repeatedly stressed that even punishable speech or conduct simply may not be treated differently based on its content, and certainly not on the viewpoint it es

pouses.

A few remarks that suggest that a law such as H.R. 4797 might be treated differently were negated by subsequent emphatic statements that "the first amendment does not permit government to impose special prohibitions on those who express views on disfavored subjects," and, "What we have here, it must be emphasized, is... a prohibition of fighting words that... contain messages of bias-motivated' hatred.... [T]he manner [in which government confronts] such notions cannot consist of selective limitations.

The punishment imposed by H.R. 4797 would be both content and viewpoint based. On its face it punishes motivation, hatred, bias, prejudice, and only on those certain government disapproved bases.

Not only does this beg the question whether, along with the intended message of disapproval of these particular bigotries, this Congress is somehow sending a message of tacit approval of other biases, such as biases based on poverty, homelessness, handicap, it also falls squarely within the rule of R.A.V. that the Government may not regulate based on hostility or favoritism toward the underlying message expressed.

For this reason, immediately after R.A.V., the Wisconsin Supreme Court in Mitchell, and it was the first State supreme court to rule on an enhancement law, held that it is clear that the hate crime statute creates nothing more than a thought crime, and accordingly struck it down.

This is the evil that was feared by Justice Holmes when he wrote, "If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought, not free thought that we agree with, but freedom for the thought that we hate."

The proponents of the bill contend it is not really directed toward thoughts or beliefs, but to conduct or effects. But that isn't what the proposed law says. If you remember, all the conduct involved. is by definition already punished, so the enhancement is purely for the motivation, and only if it involves a particular content and viewpoint.

As to the unique effects of bias-motivated crime, the Supreme Court did recognize those effects in R.A.V., but it held they did not justify the content and viewpoint discrimination because content neutral alternatives were available to St. Paul, and as I will point out in a moment, they are available to this Congress as well.

Tying the thought punishment to punishment for conduct doesn't avoid the first amendment violation. Even in United States v. O'Brien, where the Court set out the rule about expressive conduct being punishable as conduct despite effect on expression, the Court stressed that Mr. O'Brien was being punished for conduct in destroying his draft card and for nothing else. He could not constitutionally have received additional or enhanced penalties because he did so motivated by his opposition to the war.

Our focus today has thus far been on the first amendment, but the bill contains numerous and serious violations of due process and equal protection guarantees as well. For example, H.R. 4797 is completely vague as to its applicability to mixed motive situations. These are the most common situations that are being encountered under analogous State laws today.

The bill is silent on whether the motivation has to be the sole motivation, the primary motivation, a substantial motivation, or perhaps just an objectively possible motivation. That problem is compounded because the motivation has to be based on hatred, bias, or prejudice, but we don't know, totally based on, primarily based on?

This may seem like a word play problem, but this has been creating problems of inconsistent enforcement in the States already, even in the first few cases.

This kind of vagueness gives inadequate notice to the public and dangerously courts at least inconsistent and probably arbitrary and discriminatory enforcement.

Equal protection is also violated, because this law would treat people who commit the same offenses differently based upon their constitutionally protected thoughts, beliefs, and opinions.

Also, in its commendable enthusiasm to combat bigotry, this subcommittee may be inadequately considering the likely counterproductivity of this type of bill. The protection afforded by this approach also stigmatizes its intended beneficiaries, which then increases resentment toward them and predictably increases the incidence of crime growing out of that as well.

There is also the danger that this law would be applied with disproportionate frequency against minorities, particularly young minority males, such as in England, even without any deliberate discrimination. The inherent subjectivity of terms such as "hatred" and “prejudice" maximizes the effects of unconscious racism, and invites abuse by the overtly bigoted.

If laws motivated by biases and prejudices based on race are approved, then tomorrow I fear we will be seeing and be unable to stop local legislatures, in one county enhancing penalties for crimes committed by reason of opposition to abortion; in the next country, for crimes committed by reason of support of abortion; for crimes motivated by animal rights or environmental concerns.

Noncriminal approaches would likely prove to be less problematic and at the same time more effective solutions to this problem. For

example, if the problem is that crimes motivated by bias are not conscientiously being prosecuted, Federal funding can be withheld from those jurisdictions.

However, if this Congress ultimately decides that an enhancement statute is desirable, I would like to suggest a content and viewpoint neutral approach that would, I believe, avoid invalidation in the wake of R.A.V.

If the rationale for the law is that the special harm of bias crime, as you, Mr. Chairman, expressed earlier, is what justifies the increased penalty, then let the law be directed toward that harm, not toward the defendant's motives and thoughts.

Bigotry is constitutionally protected. But terrorism is not. A law that would enhance crimes committed with specific intent to create terror in a community would probably be upheld under R.A.V.

It would insulate the law from invalidation under the first amendment per R.A. V. and the equal protection clause, because it would contain no distinction based on content, viewpoint or belief. It would be easier to enforce because it would avoid the problems of proving motives or hatreds. It would reach all the conduct contemplated under the bill as currently drafted. And it would do

more.

It would also reach other types of crimes that create terror to others beyond the immediate victims: drive-by shootings, poisoned Tylenol, random killing of restaurant patrons, harassment of abortion providers.

I would also urge this Congress to create any such law as part of the criminal code, not just part of the sentencing guidelines. To satisfy the due process clause, an element triggering such a severe upgrade must be pleaded and proved at trial, not left to the sentencing authority.

I believe that a member of the subcommittee had a question on motive versus purpose earlier. Would you care for me to address that?

Mr. SCHUMER. Motive versus intent.

Ms. GELLMAN. Fine. Motive versus intent. I believe there is a very important distinction. Both are mental processes to be sure. But I certainly disagree with Professor Tribe who says, "They are all mental processes, there is no difference."

We certainly distinguish among mental states, mental processes, such as accidental, negligent, knowing, and purposeful conduct. Those are all mental states. Yet, motive is different than all of them. Each of those types of elements, "intent," for example, changes what was done, for example, from an accident to a purposeful act, an intentional act.

Motive changes why it was done. And the example that I used in my article, or that Professor Lefave has used, is the example of burglary. An illegal entry, under most criminal codes, only becomes burglary if it is done with specific intent to commit a crime or felony within the dwelling. If I come into your house unlawfully to steal your money, it doesn't matter whether my motive is to support my drug habit or to build a house for the homeless. It is still a burglary. But if I enter your home unlawfully to get my own wallet that I left there, again, it doesn't matter whether my motive

was to support my drug habit or build a house for the homeless. It is not a burglary because I didn't have the requisite intent.

I believe this is a reason why motive is customarily left out of our criminal codes. The Federal and many States' standard jury instructions make a point of saying motive is not an element of the offense.

I believe that one of the other speakers is going to address the distinction between this type of law and the Federal civil rights law. However, I would certainly be happy to answer questions on that as well.

Chairman Schumer, members of the subcommittee, I thank you for this opportunity to express my concerns. I am happy to answer any questions.

Mr. SCHUMER. Thank you, Ms. Gellman.

[The prepared statement of Ms. Gellman follows:]