Limits on hate crime laws

In mid-February, a 15-year-old boy in Oxnard, CA, was shot in the head by a 14-year-old classmate who now faces murder charges. As reported by the LA Times, several students said the victim had come out as gay. According to authorities, "If the suspect targeted [the victim] because of his sexual orientation, the case could rise to the level of a hate crime."

A recent paper by the Congressional Research Service (CRS) summarizes the constitutional issues for states and Congress when enacting hate crime laws. CRS cites several U.S. Supreme Court cases that provide the parameters for such legislation.

After these landmark cases, the real questions for states involve identifying permissible ways to curtail hate crimes without infringing on any constitutionally protected rights. On the federal level...the question remains as to what extent Congress can broaden the classes of individuals subject to hate crime legislation.

The paper discusses the applicability of the commerce clause, the Reconstruction Amendments (13th, 14th, and 15th), and the 1st and 6th Amendments.

Constitutional Limits on Hate Crime Legislation, RS22812 (pdf, 6pp/76kB, from Open CRS), Feb. 20, 2008

See earlier FR post, Dealing with "symbols of fear and violence," 10.25.07. §706-662, Hawaii Revised Statutes, therein was amended by HB2, which became Act 1, Session Laws of Hawaii 2007, 2nd Special Session.

Update on extended sentences in Hawaii

Our Oct. 25 post on hate crimes noted that §706-662, Hawaii Revised Statutes, on extended sentences was deemed unconstitutional by the Hawaii Supreme Court "because it authorizes a court, rather than a jury, to make the finding that an extended term is necessary." In the recently concluded Second Special Session of the 2007 Hawaii Legislature, that defect was remedied by the passage of HB2 that became Act 1 (pdf, 14pp.) on Oct. 31. Act 1 requires a jury to determine facts necessary to impose an extended term of imprisonment unless the right to jury determination is waived, in which case determination is to be made by the court.

Dealing with "symbols of fear and violence"

From the Jena Six case in Louisiana to the recent (Oct. 22) sending of a noose to a black principal in Brooklyn, as reported by the New York Times, there has been a growing number of incidents involving nooses. The latter AP story, found on the ABC News website, notes that "the frightening symbol of segregation-era lynchings has been turning up around the country."

Earlier this month, the Congressional Research Service (CRS) issued a report on state laws against what are basically hate crimes. According to the report, virtually every state has criminal statutes covering burning crosses, exhibitions of nooses, and similar displays, or those that cover coercion, terroristic threats, harassment, or the deprivation of civil rights that can be applied to misconduct like cross burning. CRS provides an extensive analysis of First Amendment protection of speech and expressive conduct relating to these statutes.

CRS also notes that most states have enhanced sentencing laws for hate crimes. In Hawaii, §706-662, Hawaii Revised Statutes, provides for extended terms of imprisonment. Subsection (6) therein specifically covers hate crime offenders. On October 1, 2007, in State v. Maugaotega (html) (pdf, 39pp.), the Hawaii Supreme Court declared §706-662 unconstitutional because it authorizes a court, rather than a jury, to make the finding that an extended term is necessary.

Burning Crosses, Hangman's Nooses, and the Like: State Statutes That Proscribe the Use of Symbols of Fear and Violence with the Intent to Threaten, CRS Report RL34200 (pdf, 20pp/144kB, from Open CRS), October 5, 2007