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Mr. SCHUMER. Mr. Peck.

STATEMENT OF ROBERT S. PECK, LEGISLATIVE COUNSEL,

AMERICAN CIVIL LIBERTIES UNION Mr. PECK. Thank you, Mr. Chairman, and members of the subcommittee. It's a pleasure to be here to talk about this proposal. It obviously reflects the heightened seriousness with which society should regard criminal acts that are based on and also constitute invidious discrimination.

But while the ACLU board is still examining whether such a hate crimes statute could be constitutionally written, it is convinced that this one fails that test. We are continuing that investigation, but we have always opposed legislation that might encourage police and prosecutors to make constitutionally problematic inquiries into protected speech interests where there is no legally cognizable nexus to the crime itself.

Mr. Fein in his testimony uses the example of "Mein Kampf" being good proof of bias. I would suggest you don't need any additional proof in Hitler's case. The fact is, entry of a book like that would indeed be unconstitutional in our jurisprudence.

He also, to answer another question that he raised, talks about the Beauharnais case as cited approvingly in the R.A.V. decision, and I am surprised my colleagues have not pointed out that no one really regards Beauharnais as good law.

Indeed, Mr. Fein's copy of Ř.A.V. must have been missing the next sentence, because in the next sentence Justice Scalia writes, "Our decisions since the 1960's have narrowed the scope of these decisions.” So Justice Scalia was simply citing some of the early first amendment decisions. He cited Roth in the obscenity area, Chaplinsky in fighting words.

It also seems to me that not much discussion has gone on about the fact that the sentencing process lacks substantial due process safeguards. This is particularly important when presumptions about the first amendment are involved. No one questions that there are some first amendment dangers here, that prosecutors certainly could go beyond anything that this committee intends, and try and get that before a judge. And I suggest that we need to put in those safeguards to make sure this does not happen because a prosecutor who wants to use every weapon available will use that.

In sentencing there is no evidentiary hearing required. A preponderance of the evidence is sufficient. Hearsay evidence can go in. Evidence otherwise excluded from the trial can also be considered. These things pose dangers for the first amendment that otherwise would not take place in the trial itself.

I think that you have to talk seriously about that, because the only evidence of bias motivation that comes to a judge trying to deal with the sentencing guidelines will be the probation report and anything else the judge wants to consider. There is not necessarily an opportunity to question any witnesses that may have made comments included in the probation report, to question whether this is indeed connected at all with the crime.

Professor Tribe said that he is not terribly troubled by this. He thinks the courts should deal with this on a case-by-case basis. Leave it to the courts, he says. But a Congress sensitive to the first

amendment, that police and prosecutors will become geared for battle and use whatever they can, will not make that kind of a deci. sion. It will say that we need to put some protection in there.

Indeed, your bill recognizes that you have to remind the Sentencing Commission to include mitigating circumstances, and mitigating circumstances certainly aren't constitutionally required in this legislation if you do that, we suggest that you need to pay some attention to the first amendment problems that this bill does pose.

Now, under our Constitution, we even permit the advocacy of illegal acts. That is protected first amendment speech. It is only after you have taken steps to implement that particular advocacy that it becomes punishable, and under our conspiracy laws, it is punishable only after you commit an overt act.

I would suggest that in Barclay, the Court focused on the intent to start a race war, which is not exactly racial hatred. It is an intent to create a war using certain kinds of facts and using certain kinds of reactions. In that case, it is not just the hatred that is being punished, but the broader effects that the Court recognizes from the likely war. That is quite different from punishing hate.

On top of that, I think an aggravating factor is different from an enhancement. This goes to your question before we began with witnesses, Congressman Schiff. You cannot punish speech. That is what the first amendment says. And you cannot punish it whether you are punishing it as an original crime or you are adding years to the penalty simply because of that speech.

That is why there is no difference between an enhancement and a crime as an original matter. But the difference in an aggravating factor is that when a judge has complete discretion within a range, say, 5 to 10 years, and chooses to use whatever comes before him to decide whether it will be 5 years or 10 years or someplace in between, the courts have broad discretion, and indeed mitigating factors can lower that. But when you have all those aggravating factors and you have all those mitigating circumstances piled in together and you say, OK, this is the 5 to 10 year range we are dealing with, but because of this legislation we have to add at least three levels, then what you are doing is you are saying that this is not an aggravating factor to be considered within the guidelines, but this becomes almost an additional crime. That is what I would like to suggest is the problem here.

Mr. SCHUMER. Thank you, Mr. Peck.
[The prepared statement of Mr. Peck follows:)

PREPARED STATEMENT OF ROBERT S. PECK, LEGISLATIVE COUNSEL,

AMERICAN CIVIL LIBERTIES UNION

Summary of Testimony The American Civil Liberties Union strongly opposes the enactment of H.R. 4797, the Hate Crimes Sentencing Enhancement Act of 1992. We understand that the bill is intended to address the very real and substantial problem of crimes that are directed against people or their property because of the victims' race, color, religion, national origin, ethnicity, gender, or sexual orientation. Nevertheless, we believe that H.R. 4797 is a constitutionally flawed approach to this problem and strongly oppose its enactment.

The ACLU believes this conclusion is compelled by the First Amendment, regardless of the position one takes on the issue of whether hate crimes can be punished differently from crimes that are not directed at against a constitutionally protected group. H.R. 4797 lacks the precision and specificity that the courts have required of criminal statutes that implicate First Amendment rights. A defendant's opinions, beliefs and associations are constitutionally protected and cannot be made the basis of an enhanced sentence. H.R. 4797 contains no safeguards to prevent that result and thus violates the First Amendment's overbreadth doctrine.

Moreover, assigning the development of guidelines to the Sentencing Commission does not satisfy constitutional requirements. It is the responsibility of Congress to write the law in a manner that complies with constitutional requirements. The sentencing phase of a trial, at least as currently developed, poses additional constitutional problems for hate crimes statute. During sentencing, a judge may consider extraneous evidence that is not formally before the court, hearsay, and even evidence that was excluded from trial because it was illegally seized. There is no requirement of proof beyond a reasonable doubt, nor any requirement that an evidentiary hearing be held at all. These and other deficiencies in the sentencing stage pose a special threat to First Amendment freedoms in the context of a hate crimes sentencing enhancement law.

Recent decisions of the United States Supreme Court and the Wisconsin Supreme Court invalidating hate crimes laws underscore the complexities with which this committee must deal. H.R. 4797 lacks an appreciation for those complexities and should be rejected. Should this committee wish to make another attempt at drafting legislation to deal with hate crimes, it should examine the criminal civil rights laws already on the books for possible models, while also considering the substantial First Amendment issues that must still be addressed.

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Mr. Chairman and Members of the Subcommittee:

Thank you for this opportunity to testify on behalf of the American civil Liberties Union concerning H.R. 4797, the "Hate Crime Sentencing Enhancement Act." My name is Robert S. Peck, and I serve as legislative counsel for the ACLU. The American Civil Liberties Union is a nationwide, nonpartisan organization of nearly 300,000 members dedicated to defending the principles of liberty and equality embodied in the Constitution and, most particularly, in the Bill of Rights. Throughout its 70-year history, the ACLU has been particularly concerned with any abridgement of the freedoms guaranteed by the First Amendment.

From the outset, let me say that we recognize that H.R. 4797 is intended to address the very real and substantial problem of crimes that are directed against people or their property because of the victims' race, color, religion, national origin, ethnicity, gender, or sexual orientation. There can be little doubt that this nation is experiencing a rising tide of violence that is tied to discriminatory animus. Historically, the ACLU has supported legislation intended to protect civil rights and civil liberties by providing remedies against invidious discrimination. Nevertheless, we believe that H.R. 4797 is a constitutionally flawed approach to this problem and strongly oppose its enactment.

The ACLU believes this conclusion is compelled by the First Amendment, regardless of the position one takes on the issue of whether hate crimes can be punished differently from crimes that

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are not directed at against a constitutionally protected group. Let me emphasize that the ACLU, at present, has no position on whether a hate crime statute may be written in a manner that is consistent with constitutional requirements. A committee of our national board of directors is preparing a report on this issue that will be submitted to the full board for consideration at its fall meeting. Nevertheless, we believe this bill is clearly inadequate as a constitutional response to the problem and suggest that Congress should explore other ways to address the concerns that are at the heart of this legislation.

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H.R. 4797 contains No Standards and Endangers First Amendment

Rights.

Free speech is perhaps one of the most important guarantees we enjoy in a free society. It remains a fundamental principle of our national culture. For that reason, the ACLU has consistently opposed legislation that would punish the expression of thoughts, opinions or beliefs. We even defend the expression of ideas with which we vigorously disagree -- ideas, for example, such as racial supremacy or religious bigotry. We do so because, if you concede to government the power to censor that speech, you must also concede the power that could be used by a future political majority to punish speech that advocated racial harmony or religious tolerance.

Defending hateful or offensive speech does much more than

prevent a bad precedent from taking root. When you allow the kind

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