Why we Need Hate-Crime Legislation in Arkansas:
Stopping Bias-Motivated Violence
By Mark Pryor

What is a "hate crime"? "Hate crime" is a media-invented phrase, which is largely left undefined. Nonetheless, the term is generally understood to mean any crime that is motivated by a hatred for a specific segment of society. The victim is often chosen simply because he or she is a member or a perceived member of that societal group. So, in a real sense, the crime is committed against an entire group, and not simply against an individual. Some call hate crime "bias-motivated crime" because the term focuses on the perpetrator's motivation rather than on an emotional reaction or feelings of enmity. A hate crime is not just about hatred; it is about motive.
These crimes are different from crimes of passion or crimes of revenge where victims
are specific individuals chosen because of a relationship to the perpetrator. They are also different from random crimes, like armed robbery or home burglaries, where the victims are basically interchangeable.  Put another way, most crime victims are selected because of who they are or because of what they do. Victims of hate crimes are selected because of what they are. This distinction is important. They are selected because of the color of their skin or because they hold certain religious beliefs or because of their gender. In addition, bias-motivated crimes are committed with the purpose of sending a message to the victim and also to the segment of society associated with the victim. The message is simple ­ because of your race or your religion or your sexual orientation, you are not welcome here.

Why do we need a "hate-crime" law? Because hate crime exists. It is that simple. It is impossible to know exactly how many hate crimes are committed nationally each year. The FBI relies on the voluntary reporting of hate crimes by local law enforcement. That, coupled with the fact that many hate-motivated crimes are not reported to local law enforcement, makes it very likely that hate crimes in this country are vastly under-reported. Still,in 1999, the FBI received reports that 7,876 hate crimes had occurred. Even though almost every category of crime has trended downward for the last eight years, hate crime is actually trending upward. Still, the national statistics are very difficult to interpret. The same is true for hate crime in Arkansas. Since this state does not have a crime to report, virtually none are reported. So, the statistics are not much help.
     We need to face the fact that mankind has a history of attacking people who seem different. There are certain communities of people traditionally targeted for hate violence. During much of the 20th century, African Americans were often targets of lynching when they attempted to vote. Non-majority churches and houses of worship are still frequently the targets of hate-motivated vandalism. Gays and lesbians are often attacked for showing affection to one another or for "looking too gay". Forty-four states already have some type of bias-motivated-crime legislation; Arkansas does not. These states have sent a clear, unequivocal message that crimes motivated by bigotry will not be tolerated; Arkansas has not. I realize that prejudice, like violence, cannot be legislated out of existence. We can, however, take a step toward making this state a better place in which to live and to raise a family by standing firm against bigotry. Otherwise, we risk having the dubious distinction of becoming the only state in the nation not to enact this type of legislation.

Wouldn't this lead to a form of "thought police"? No. A properly drafted hate-crime law does not punish thought any differently than is currently done in our criminal justice system. Arguably, the culpable mental state is punishing thought. Triers of fact already determine issues of mens rea and motivation. So doing this with hate crime is nothing new. The best hate crime law punishes people not for what they think, but for what they do. It is important that our law not abandon recognized criminal justice standards.
     In presenting this evidence to a jury, the rules of evidence should applyand the bias-motivation should be proven beyond a reasonable doubt.
     Simply because a crime occurs between a perpetrator and a victim of different races, the penalty enhancement should not be automatically triggered. If that were the standard, then I would say that the criminal justice system would be harmed. There must be evidence of bias-motivation that can be presented to the jury in the sentencing phase of a trial. All of this depends on the circumstances, but a prosecutor might look to a history of prejudicial statements the perpetrator made or wrote before committing the crime. The prosecutor might also look at the crime scene to determine any evidence of bigotry or bias. In fact, evidence that the perpetrator knew the victim would, in many cases, cut against the use of the penalty enhancement because it would make it less likely that the victim had been selected because of race, religion, ethnicity, or other factors.

Wouldn't such a law give "special rights" to "special groups"? No. Hate crime laws set out certain criteria as the motivating factor for committing the crime.
     These should include qualities we all possess ­ race, color, nationalorigin, ethnicity, gender, religion, and sexual orientation. I want to reiterate that these are characteristic attributes of all individuals. Unfortunately, many people perceive hate-crime laws as only benefiting minorities. This is not true but is a persistent misunderstanding.
     Any person in this state could become the victim of a hate crime ­ because of race, because of gender, because of a belief system. A hatecrime law should be neutral or generic in its definition and application. The law should not divide us, but unite us. It must protect all citizens equally and it must punish without discrimination.
     Aren't hate crimes already being punished by existing laws? No. It is true that the underlying crimes are already being punished, but the biasmotivation is not. Let me give two examples of this. If a perpetrator vandalizes a car by scratching three X's in the paint, then he has committed a crime and should be punished. However, if the perpetrator scratches three K's in the paint of the car and the owner of the vehicle is black or Jewish or Catholic, then most people would agree that the crime is more than just vandalism. Its intent is to send a message of fear and intimidation. Likewise, if a group of high school seniors goes to a commercial building in the wee hours of the night and paints the phrase, "Class of 2001", on the exterior of the building, they have committed a crime and should be punished. However, if these same seniors go to a synagogue and paint swastikas on the exterior of the building, that is a different matter. They are sending a message of fear and intimidation that will ripple throughout the Jewish community.
     I think the best and most constitutionally sound hate-crime laws are those that provide for penalty enhancements. Most of the forty-four states that have taken action against crimes of bigotry have taken this approach. The exact amount of enhancement varies widely from state to state.
     As lawyers, we understand that criminal penalties are enhanced in dozens of other circumstances. These include crimes committed on or near school property, committing a felony with a firearm, belonging to a criminal gang, being an habitual offender, or killing a police officer. The reason we enhance penalties in this state is for public policy.
     Certainly, we are punishing the perpetrator for the underlying crime, but we feel it necessary as a society to add to the penalty due to the circumstances of the crime. Many penalty enhancements go back to the motivation for committing the crime in the first place. Penalty enhancements are designed to act as an additional deterrent to committing these types of crimes.
     Arguably, criminal penalty enhancements differentiate among victims. By way of example, if one person is selling drugs on the street corner and another person is selling drugs at the local junior high school, why should we have a harsher penalty in the second case than we do in the first? It's amatter of public policy. In both cases, a fifteen-year-old could be purchasing marijuana and so, from that standpoint, the victims look identical. But our public policy is to have drug-free school campuses and to create safe,positive learning environments. It is not that the fifteen-year old purchasing drugs on the street corner is any less a victim or any less important, but public policy dictates that the perpetrator does not qualify for an enhanced penalty under that circumstance.
     It is true that a hate-crime law looks at the victim, but that is actually not the focus of the law. The true focus is to punish the perpetrator. In America, we are free to think what we want and say what we want, but when our opinions about certain segments of society motivate us to commit criminal acts, then all of us in society are hurt.

Are hate crime laws constitutional? Yes. On several occasions, the United States Supreme Court has addressed hate-crime laws. There now exists abody of law that establishes the parameters necessary to have a constitutional hate-crime act. As with many U. S. Supreme Court decisions, there are a number of factors to address, but it is relatively easy to draft a law that passes constitutional muster.
      Two constitutional questions that are often raised about hate-crime laws are whether they violate the due process clause and whether they trample on our rights of free speech. If the law is drafted correctly, it will run into problems on neither front.
     In Wisconsin v. Mitchell, 508 U.S. 476 (1993), the Supreme Court upheld a Wisconsin statute that provided for an enhanced penalty where the defendant intentionally selected the victim based on particular characteristics of the victim. The Supreme Court held that because the bias-motivation would have to be connected with a specific act, there was no First Amendment violation.
     Chief Justice Rehnquist wrote the opinion in Mitchell on behalf of a unanimous Court. Two themes dominated the opinion. The first is that there is a distinction between illegal conduct and improper points of view, punishing the prohibited act rather than the expression or viewpoint. The second theme in Mitchell is that Wisconsin's law did not create a new crime, but only sought to provide a different sentencing structure for conduct that was already criminal. In this regard, the Chief Justice points out that motive has always been a legitimate consideration in the sentencing process.
     In Apprendi v. New Jersey, 120 S. Ct. 2348 (2000), the Supreme Court recently addressed a due process challenge to the hate-crime penalty enhancement statute from New Jersey. The statue provided for an enhanced penalty if the trial court judge determined by a preponderance of the evidence that the defendant committed the crime with the purpose to intimidate a person (or group) because of particular characteristics of the victim. The Supreme Court held that the Fourteenth Amendment right to due process and the Sixth Amendment right to a trial by jury, entitle a criminal defendant to a jury determination that he is guilty of every element of the crime with which he is charged, beyond a reasonable doubt.

Senate Bill 35. During the 2001 General Assembly, I asked the Legislature to pass a hate-crime law here in Arkansas. The lead sponsors were Senator Bill Walker and Representative Tracy Steele. After passing the Senate, it failed in the House Judiciary Committee. The bill was drafted specifically to meet all of the objections previously raised in this article.
     S.B. 35 was modeled after several states' hate-crime statutes, including Wisconsin. Similar to the Wisconsin statute, the proposed legislation provides for a penalty enhancement where the defendant purposely selects the person against whom the crime is committed because  of the particular characteristics of the victim. It was also closely tailored to comply with the standard the Supreme Court provided in Apprendi.
     The legislation provided constitutional protections for a criminal defendant because it required that the State provide the defendant with notice that it intended to seek an enhanced penalty and provided that the trier of fact determine beyond a reasonable doubt whether the defendant purposely selected the victim because of the particular characteristics of the victim.
     In addition, S.B. 35 had one strength not previously addressed. It was community-based with local control. I think this is important since the nature of hate crime is crime against a segment of the community. If enacted, the law would have permitted communities to stand firm against crimes of bigotry committed locally. The way the bill was structured was to require the community-elected prosecutor to include "written notice in the information or indictment indicating that the person, upon a finding of guilt, is subject to the enhanced penalties." The prosecutor would have to convince the community-elected judge to allow presentation of evidence to the jury. The jury, which is representative of the community, then would determine whether to enhance the penalty or not. S.B. 35 would not strong-arm this enhanced penalty on an unwilling public, but would leave the decision in the hands of local people.
     Many opponents of this legislation fear the hate-crime laws will amount to prosecuting thought and violating the right to free speech. But we drafted our hate-crime law not to punish speech, but to punish activity already defined as criminal. As written, our bill created enhanced penalties only for crimes committed as defined under current Arkansas statutes,such as battery, arson, vandalism, etc. Therefore, it would not apply to teasing or name-calling. It would not enhance penalties for bigoted ideas, but for the defendant's actions based upon these ideas.
     The proposed legislation contained a clear statement that we would not punish "mere abstract beliefs or expressions". The fact that the perpetrator was indeed prejudiced against his victim would not have been sufficient to designate an offense as a "hate crime". The prosecutor would have to show "beyond a reasonable doubt" that the victim was purposely selected due to his race, color, gender, religion, national origin, ethnicity, sexual orientation, or disability. There was a provision that ensured this would not be used in rape cases and certain other gender-based crimes. In addition to these safeguards, the final decisions were left in the hands of local people. In other words, the elected prosecutor would have to file forthe enhancement, the elected judge would have to allow the evidence to be presented in the sentencing phase, and the jury could either accept or reject the enhancement.
     Hate-crime legislation cannot undo the damage caused by bigotry. However, it can be a significant step in the right direction in addressing this serious problem.  It may begin to reassure victims of such crimes that the communities in which they live condemn, rather than condone, bias-motivated criminal acts.
     Just as I had many questions to resolve when I first began to carefully look at the issue of bias-motivated crime, I realize that there may still be some lingering doubts or uncertainties remaining in the mind of the reader. But, in keeping with our public policy of enhancing penalties for other despicable acts, we also need to find a strong, clear public-policy statement demonstrating that Arkansas has no room within its borders for hatred. So I ask one last question: If Arkansas becomes one of only a handful of states, indeed maybe the only state, not to take a position against bias motivated crime, what message are we sending to our citizens and to the rest of the nation?