Academic journal article The University of Memphis Law Review

The Constitutionality of State Hate-Crime Legislation after R.A. V. V. City of St. Paul and Wisconsin V. Mitchell

Academic journal article The University of Memphis Law Review

The Constitutionality of State Hate-Crime Legislation after R.A. V. V. City of St. Paul and Wisconsin V. Mitchell

Article excerpt

I. INTRODUCTION

Jasper County, Texas, population 8,000 and one of the poorest regions in the United States, provided a wake-up call for us all in the summer of 1998.1 Hate crimes are still a problem in this country. On June 7, 1998, James Byrd, Jr., a forty-nine year old African-American male, was savagely beaten, chained to the back of a pick-up truck, and dragged for miles.2 Mr. Byrd's head was torn off after about one mile, while the rest of his body was pulled behind the truck for an additional two miles before being dumped off at a predominately black church." all three of Mr. Byrd's attackers had established ties to racist associations and white supremacist groups.4

Unfortunately, Mr. Byrd's brutal murder was not an isolated event. Hate crimes occur with alarming frequency in this country. FBI Hate Crime Statistics5 reveal that the total number of biasmotivated criminal incidents increased from 7,947 in 1995 to 8,759 in 1996, over a ten percent increase.6 Despite signs of decline in 1997, 1998, and 1999, the number of incidents was back on the rise in 2000.7 The data showed that hate crimes were most frequently directed at individuals, but religious organizations and businesses were also under attack.8 Of the hate crimes committed against individuals, intimidation was the single most frequently reported hate crime, followed by destruction/damage/vandalism to property.9

A hate crime is defined as "[a] criminal offense against a person or property motivated in whole or in part by the offender's bias against a race, religion, disability, ethnic/national origin, or sexual orientation."10 Hate crimes are particularly alarming because they are "more violent, socially disruptive, random and serial in nature than ordinary crimes, and are more difficult to solve."11 FBI statistics reveal that, as compared to general crimes, hate crimes are more likely to be carried out by groups of perpetrators, to entail higher levels of assaults, and result in more physical injury.12 In addition to causing the victim "continuous wonderment over why they were attacked due to a characteristic they could not control,"13 the effects of hate crimes often spread throughout the community. It has been noted that hate crimes "provoke retaliatory crimes and incite political unrest,"14 as well as create feelings of vulnerability and apprehension throughout the community in which they occur.15

Congress has recognized the special concerns and effects of hate crimes. Congress's first attempt to combat hate crimes came when it enacted the Civil Rights Act of 1968. Congress continued its attempt to deter hate crimes when it passed the Hate Crimes Statistics Act of 1990.17 Subsequently, Congress passed the Hate Crimes Sentencing Enhancement Act of 1994.18 Five years later, Congress continued in its attempt to curtail hate crimes by considering the Hate Crimes Prevention Act of 1999.19 In 2001, Congress again considered the adoption of the Hate Crime Prevention Act.20 The Local Law Enforcement Hate Crimes Prevention Act of 2001 was also under consideration in 2001.21 Although there is some federal legislation in place, many states have enacted some form of ethnic intimidation law or biasmotivated sentence-enhancement factor in attempts to curtail hate crimes.22

While the goal behind these efforts may be laudable, hate crime legislation has not gone unopposed. The main concerns of critics are that hate crime laws criminalize speech and thought and that the laws "impermissibly distinguish among people based on their beliefs."23 Critics argue that the views expressed by racists and sexists, though undesirable, are nevertheless entitled to Constitutional protection.24 The First Amendment provides this protection by preventing states from "regulating speech on the basis of the content or viewpoint expressed except in extreme circumstances."25

This Note addresses the constitutionality of hate crime laws. Part II discusses the R.A. …

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