A Hate-Crime Law to Survive Supreme Court Scrutiny


Yusuf Hawkins. Julio Rivera. Yankel Rosenbaum. All three met their deaths because of bigotry.

Hardly a week passes without a news story reporting the pain and anguish experienced by bias-crime victims and their communities.

At a time when hate-motivated violence is on the rise, a U.S. Supreme Court decision has unfortunately cast doubts on the validity of all hate-crime statutes.

The decision struck down a hate-crime ordinance in St. Paul, Minn., in spite of Justice John Paul Stevens' warning that "One need look no further than the recent social unrest in the nation's cities to see that race-based threats may cause more harm to society and to individuals than other threats."

But the ruling should not be read in sweeping terms. While Justice Antonin Scalia's majority opinion makes it clear that states and cities seeking to legislate against bias-motivated criminal conduct can no longer rely on the "fighting-words" exception to the First Amendment's free-speech clause, the Anti-Defamation League has an alternative we believe is constitutionally sound.

For the last decade, ADL has promoted model hate-crimes legislation built around a penalty-enhancement concept, and many states have enacted laws based on or similar to this model.

The concept is simple: No one is punished merely for bigoted thoughts or bigoted speech. What this approach does is criminalize action; it comes into play only when an individual's criminal conduct was promoted or fueled by his or her demonstrated bigotry.

Then and only then, a prosecutor can seek a stepped-up penalty for the assault, vandalism, trespass or other crime. Before the stepped-up penalty can be imposed, the prosecution must prove in court, beyond a reasonable doubt, that the crime was bias-motivated.

Unlike St. Paul's ordinance and contrary to a recent decision by the Wisconsin Supreme Court, this legislation does not run afoul of the First Amendment. It does not rely upon "fighting words" or any other exception to the free-speech clause. It is distinguishable from the St. Paul approach because it does not punish speech, not even fighting words.

There is no question that legislation is necessary to combat bias-motivated crimes. The impact of a cross-burning or a swastika-daubing is of a magnitude far greater than, for example, the spray-painting of graffiti on a subway car.

The ADL believes there is a compelling public interest in countering hate crimes. They warrant tougher sentences.

Although the enactment and vigorous enforcement of hate-crimes legislation is an important component of our effort to counteract the activities of the bigots and haters among us, it is by no means the only weapon at our disposal. Equally as important is work with law-enforcement officials and victims of such crimes.

As the courts continue to wrestle with different types of statutes, renewed emphasis should be placed on ensuring that police officers understand and appreciate that bias-motivated crimes have an impact transcending the individual victim and affect entire communities.

Their sensitivity is crucial to avoiding a repetition of the tragedy in Los Angeles. Victims, too, will receive special attention.

Perhaps the most unfortunate aspect of R.A.V. vs. St. Paul was captured by Justice Byron White in his concurring opinion.

He wrote that the decision "necessarily signals that expressions of violence, such as the message of intimidation and racial hatred conveyed by burning a cross on someone's lawn, are of sufficient value to outweigh the social interest in order and morality that has traditionally placed such fighting words outside the First Amendment."

To the extent that this signal has been cause for celebration by bigots across the country, we have our work cut out for us. We cannot afford to shrink from this challenge. It's not a time to throw up our hands; it's a time to roll up our sleeves.

Melvin Salberg and Abraham H. Foxman, chairman and director of the Anti-Defamation League, wrote this for Newsday.

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