Debate over the proper role of federal law enforcement concerning bias-motivated crimes, popularly known as "hate crimes," implicates criminal law doctrine and theory, issues of federalism, definitions of equality, and questions of free expression. The highest aspiration of a federal hate crime law is to demonstrate a national commitment to the eradication of a kind of violence that threatens not only our physical safety but our core value of equality. The effort to legislate in this area draws Congress unavoidably into a wide range of doctrinal and constitutional questions. Exploring the ways in which Congress must, and can, navigate the contours of these questions provides a compelling case of the means by which legislation is formed over years, or even decades.
The Local Law Enforcement Hate Crimes Prevention Act of 2007 (1) is the most recent step in the evolving federal statutory response to bias-motivated violence. Although not enacted, by some measures this proposed legislation would have been the most important piece of federal criminal civil rights legislation in nearly forty years, and in some ways, the most important such legislation since Reconstruction. The proposed legislation is a quintessential example of a law that implicates serious and complex questions of criminal law theory and constitutional law. Yet the debate over these questions is frequently driven by emotional arguments from all sides that, however compelling, ultimately miss the mark and distract from a consideration of the legal and philosophical issues at stake. Two illustrative instances of this phenomenon can be drawn from the legislative hearings concerning the Hate Crimes Prevention Act, one involving testimony in support of the proposed legislation and the other argument against.
Perhaps the most emotionally compelling moment of any of the hearings concerning the Hate Crimes Prevention Act was the testimony of an eighteen-year-old, Mexican-American young man named David Ritcheson. (2) In April 2006, one year prior to his testimony, David had been the victim of a brutal bias-motivated attack because of his national origin. The facts as David described them were both gruesome and powerful. He was "sucker-punched" and knocked unconscious by two men who then dragged him into a backyard, stripped him, and beat him. They attempted to carve a swastika into his chest. They called him "wetback" and "spic" during a beating that lasted more than one hour. Alter they had finished beating David, they dragged him to the back of the backyard and left him for dead. He awoke two weeks later in the hospital. Over the following three months, he underwent almost thirty surgeries that helped save his life. (3)
Sadly, the story of David Ritcheson does not end with his triumphal recovery and testimony before a congressional committee. Instead, the story of David Ritcheson reached a tragic conclusion on July 1, 2007, when he jumped to his death from a ship, thus presumably taking his own life. (4)
The danger of testimony such as David Ritcheson's is that lawmakers are inclined to be influenced by the undeniable power of the surface of the story a horrible crime happened and someone should be punished. Yet were that all there is to the story, Ritcheson's testimony would not make the case for a federal bias crime law: the two perpetrators of his assault were convicted of aggravated sexual assault and sentenced to life and ninety years in jail, respectively. Each must serve at least thirty years before becoming eligible for parole. Instead, as will be discussed below, Ritcheson's testimony should be understood as one piece of particularly compelling evidence to understand the subtle but significant connection between the mental state of the perpetrator and the harm caused to the victim of his crime. In this light, the testimony is far less emotionally powerful, but far more legislatively relevant. …