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ACT OF 1992




Washington, DC. The subcommittee met, pursuant to notice, at 10 a.m., in room 2226, Rayburn House Office Building, Hon. Charles E. Schumer (chairman of the subcommittee) presiding.

Present: Representatives Charles E. Schumer, George E. Sangmeister, F. James Sensenbrenner, Jr., Steven Schiff, George W. Gekas, and Jim Ramstad.

Also present: Andrew Fois, counsel; Dan Cunningham, assistant counsel; Paul Beaulieu, assistant_counsel; Bruce Morgan, clerk; Lyle Nirenberg, minority counsel; Daniel J. Greiner and Christine O'Brien, interns.

OPENING STATEMENT OF CHAIRMAN SCHUMER Mr. SCHUMER. Good morning. Our hearing will come to order. We don't have any requests.

Today the Subcommittee on Crime and Criminal Justice will examine the question of whether the Constitution will permit our Federal Government to enhance the sentences of criminals who commit hate crimes. We will particularly focus on the constitutionality of my bill, H.R. 4797, the Hate Crimes Sentencing Enhancement Act of 1992. But the issues we will confront today necessarily affect many similar hate crimes laws enacted already by dozens of States.

[The bill, H.R. 4797, follows:)


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To direct the United States Sentencing Commission to make sentencing

guidelines for Federal criminal cases that provide sentencing enhancements for hate crimes.


APRIL 7, 1992
Mr. SCHUMER introduced the following bill; which was referred to the

Committee on the Judiciary


To direct the United States Sentencing Commission to make

sentencing guidelines for Federal criminal cases that provide sentencing enhancements for hate crimes.


Be it enacted by the Senate and House of Representa

2 tives of the United States of America in Congress assembled,



This Act may be cited as the “Hate Crimes Sentenc

5 ing Enhancement Act of 1992”.



(a) IN GENERAL.-Pursuant to section 994 of title

8 28, United States Code, the United States Sentencing

9 Commission shall promulgate guidelines or amend existing


1 guidelines to provide sentencing enhancements of not less

2 than 3 offense levels for offenses that are hate crimes. In

3 carrying out this section, the United States Sentencing 4 Commission shall assure reasonable consistency with other 5 guidelines, avoid duplicative punishments for substantially 6 the same offense, and take into account any mitigating 7 circumstances which might justify exceptions.


(b) DEFINITION.-As used in this Act, the term

9 "hate crime" is a crime in which the defendant's conduct

10 was motivated by hatred, bias, or prejudice, based on the 11 actual or perceived race, color, religion, national origin, 12 ethnicity, gender, or sexual orientation of another individ

13 al or group of individuals.

•HR 4797 IH

Mr. SCHUMER. This hearing is vital, because the efforts of the States and the Federal Government have been thrown into turmoil in the wake of the Supreme Court's recent decision in R.A.V. v. The City of St. Paul. That decision raised almost as many questions as it answered. Are all hate crimes statutes unconstitutional? Are hate crimes sentencing enhancement statutes unconstitutional?

The R.A.V. decision is already having a substantial impact on courts that are attempting to grapple with these questions. Indeed, only a day after the R.A.V. decision was handed down, the Wisconsin Supreme Court struck down its hate crimes sentencing enhancement statute, relying in part upon R.A.V.

Our hearing today will necessarily focus upon the implications of R.A.V. for sentencing enhancements and the role of the courts in the sentencing phase of the criminal trial. It is my hope the distinguished witnesses we have assembled here today can shed some light on the R.A.V. decision, an opinion that many find oblique and difficult to understand.

It is also my hope that the Supreme Court will, in coming decisions, clarify the meaning of R.A.V. and the entirely new body of law it has apparently created.

It is no mystery why the leaders of our country are enacting laws to combat hate and bias crimes. The menace of bias crimes is spreading like a cancer across this country. In May of this year, the subcommittee held a hearing on hate crimes in the borough of Brooklyn. During that hearing, the subcommittee was presented with evidence of an epidemic of hate crimes in our country, a crime which is no ordinary crime because it transcends its victims and strikes fear into entire communities.

So I introduced H.R. 4797, and you all know what the legislation does. However, in June of this year, the R.A.V. decision struck down a hate crimes law that prohibited the use of fighting words arousing anger, alarm or resentment in others on the basis of race, color, creed, religion or gender. Some have asserted that standing alone, the R.A.V. decision might cast doubt on the constitutionality of H.R. 4797 and similar statutes.

I respectfully disagree. For one thing, the R.A.V. decision didn't directly address the issue of sentencing enhancements for hate crimes. In addition, other cases decided by the Supreme Court, almost as recently as R.A.V., strongly suggest that the first amendment may not prevent the trial court's consideration of evidence of a defendant's motive to commit that crime at the time of sentencing. That only stands to reason. Motive is relevant to every criminal sentence.

For example, Robin Hood and Michael Milken were equally guilty of theft, but most people would agree that Robin Hood, who stole from the rich and gave to the poor, deserved a lighter sentence then Michael Milken, who stole to line his already wealthy pockets.

That was added after I read it last night. We are going to credit that to the hard-working staff.

This hearing will examine the constitutional issues raised by the decision I have mentioned, as well as others. To explore these issues, we have assembled an extremely eminent panel of constitutional scholars who should provide able guidance to the members

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