persuading people to conform voluntarily to the desired viewpoint. Criminalization creates an atmosphere in which people look for loopholes in the law, and at best do the minimum required of them. Surely, this is not the attitude we want to foster with regard to the ideals of tolerance and pluralism. The effectiveness of a law such as H.R. 4797 presumes the validity of the idea that government control works better to protect people than does allowing bigots liberty to display their bigotry. But reliance upon government control can be in the end far more dangerous than tolerance. Fear of ethnic attacks, most vividly expressed by terrifying pogroms, was one of the most compelling reasons Jews fled eastern Europe in the late nineteenth and early twentieth centuries. Those coming to the United States felt confident that they would be far safer from ethnic hatred and violence here, but not because the government offered Jews some sort of special protection. Rather, Jews had to rely upon the equal freedom of the system, which allowed those who hated them the freedom to hate. This gamble, by and large, has paid off: antisemitic violence in the United States, though far from nonexistent, has been sporadic and has never been encouraged or approved by the state as it was in Europe. It was those who remained behind in Europe who died horrible deaths because of their ethnicity -- and not at the hands of the mob, but as victims of a repressive state that believed that it was dictating the proper relations between ethnic groups. III. A Proposed Alternative Approach As discussed to this point, the various and serious constitutional flaws of H.R. 4797 counsel against its enactment. Fortunately, it is not the only possible approach to the problem its proponents seek to address. For the reasons outlined in my attached article, I believe that education, incentives, government and police awareness, and statistical requirements are likely to be more effective and certainly less problematic approaches than criminal penalty enhancement laws. However, if the Subcommittee ultimately determines that such a law is desirable, I believe that it may be possible to draft a law that would eliminate the constitutional defects of H.R. 4797, particularly the content-based and viewpoint-based distinctions so firmly rejected in R.A.V. and Simon & Schuster. Moreover, such a law would not only reach all the acts cognizable under H.R. 4797, it would reach other wrongs as well. Proponents of penalty-enhancement laws argue that such laws are justified because the greater harms engendered by bigotrymotivated crime deserve greater penalties. It is not really the motivation or the beliefs that the government wishes to punish, it is that greater harm. Thus, suggest that any enhancement should be imposed not for the offender's motivation, but for those effects, and that the law be worded to reflect that. This not only places the focus of the law where it belongs; if drafted properly, it would completely avoid any content or viewpoint basis. The extra harm caused by bias-motivated crime lies primarily in the fear, pain, and loss of security it creates in others in addition to the direct victim. This is what those who testified at this Subcommittee's field hearing on May 11, 1992, stressed again and again. Let that harm, then, be the focus of any enhancement statute. Not every effect upon others can be reached: the Supreme Court has made it quite clear that mere offensiveness cannot be punished. However, the more serious of the effects on others may constitutionally be reached. Offensiveness is constitutionally protected, but terrorism is not. Crimes could be upgraded to more serious offenses when they are committed "with specific intent to create terror within a community." Although the law would not include references to particular types of biases, thus avoiding any content or viewpoint basis, all the "hate crimes" H.R. 4797 is designed to reach would be covered. The enforcement problem caused by the difficulty of proving motive would be eliminated. The element of a "community" could be met variously by reference to a geographic community, a religious or ethnic group, a professional community, a political association, and so forth. Other circumstances that render crimes especially harmful would be covered, too. Persons who commit drive-by shootings or "wildings," poison random bottles of over-the-counter painkillers, plant computer viruses, vandalize clinics, or turn automatic weapons on restaurant patrons could all potentially be subject to the upgrade of various offenses. Two points are essential. First, it is necessary that the law be a separate criminal statute, not a sentencing factor. The AntiDefamation League model statute, although unconstitutional for other reasons, adopts this approach. The element of specific intent to create a certain unlawful result is so substantive, and the proposed upgrade so severe, that the Due Process Clause requires that the element triggering the upgrade must be pleaded and proved beyond a reasonable doubt to the trier of fact, not left to the discretion of the probation authority and provable by only a preponderance standard. The upgrade statute, following the ADL approach, could provide that if, in addition to the elements of an upgradable offense, the additional element of specific intent to create terror in a community is proved, then the base level of the offense would be upgraded by an increment deemed appropriate. 18 IV. Conclusion In its present form, H.R. 4797 contains several serious constitutional defects that would lead to its invalidation when challenged. In particular, the Supreme Court's recent decisions in R.A.V. and Simon and Schuster, declaring content-based and viewpoint-based regulations unconstitutional, leave little if any doubt that this law, too, would be struck down. Several policy concerns caution against enacting any form of "hate crime"; the societal costs seem likely to outweigh any benefits. However, if the Congress determines that some form of enhancement statute is advisable, then a new bill along the above lines could be introduced. Such a bill would probably avoid the |