Hate-Crime Laws Back before Supreme Court

Article excerpt

More than 40 states now have hate-crime laws, but a case before the nation's highest court will challenge `the underlying constitutional principle about a double standard.'

The Supreme Court has agreed to decide a key issue in the debate about punishing "hate crimes" more severely than similar offenses committed with other motives. The justices will decide whether prosecutors must prove beyond a reasonable doubt that a crime was driven by outlawed motives -- as most states and the federal government demand -- or if it suffices to persuade a judge after the verdict based on a preponderance of the evidence.

"The underlying constitutional principle about a double standard is there, too, and I'm going to bring it out," says Joseph D. O'Neill, the lawyer who has filed the appeal for Charles C. Apprendi Jr. of Vineland, N.J. Apprendi is serving 12 years in prison for firing at the house of the only black family in his neighborhood.

Vineland Police Det. Dennis D'Augostine testified that when Apprendi admitted firing eight shots at the home of Michael and Mattie Fowlkes and their three children at 2 a.m. on Dec. 22, 1994, he said he did so "because there were black people living there." Apprendi denied he make the statement, claiming that he fired randomly when the house's purple door caught his attention. He avoided more serious charges, such as attempted murder and assault, by pleading guilty to tiring a gun and having a bomb and admitted at sentencing that he intended to frighten or harass the family.

Had there been no hate-crime law, Apprendi would have faced a maximum of 10 years in prison. The judge could have upped the penalty to 20 years but settled on 12.

According to O'Neill, however, the law under which Apprendi was sentenced was written to appease public opinion. "Politics results in legislatures oftentimes ... supplying the needs of the public," says O'Neill, a longtime friend of the Fowlkes family. (He had to turn down the Fowlkes' request to sue Apprendi, whom he already was defending in criminal court.)

Opinions differ about whether the case from New Jersey could jeopardize hate-crime laws on the books of 40 other states, the District of Columbia and the federal government. "I think that people are going to try and bootstrap this challenge into an overall challenge of hate-crime statutes," predicts Michael Lieberman, Washington counsel for the Anti-Defamation League. "What's not at issue is the concept of penalty-enhancement for hate-crime statures. …