New York's Hate Crimes Act of 2000: problematic and redundant legislation aimed at subjective motivation(Commentary).

INTRODUCTION

The dawn of the new millennium marked New York's entry into the realm of legislating against evil thoughts. By enacting the Hate Crimes Act of 2000, (1) the New York State Legislature mandated enhanced penalties for a laundry list of criminal activities, which depend on the defendant's subjective motivation for committing the underlying or "specified offense." (2) In doing so, New York became the forty-fourth state to enact bias or hate crime legislation. (3)

New York's Hate Crimes Act is unnecessary and ill-advised. There is little or no credible evidence that bias-related crime is either prevalent or deserving of specialized treatment. (4) The criminal law that existed prior to the passage of the Hate Crimes Act adequately addressed the anti- social behavior of defendants who commit crimes motivated by bias. Furthermore, the current Hate Crimes Act will not serve as a deterrent to bias-motivated acts. (5) Additionally, this statute might violate the federal and state constitutions, create procedural and evidentiary problems not envisioned by its drafters, and represent little more than political pandering to a panoply of special interest groups.

Part One of this article provides some introductory remarks about hate crime legislation. Both federal and state law will be discussed and some comparisons will be made observing their respective approaches to bias-crime legislation. Part Two presents the New York Hate Crimes Act of 2000. Along with this general overview, the accompanying discourse discusses its design and purpose, questions its purported indispensable nature in the face of evidence demonstrating a lack of bias-crime prevalence, and comments about the New York law being built on a foundation of symbolism rather than substance. Part Three argues that the existing criminal law is more than sufficient to address the various crimes enumerated under the Hate Crimes Act, and thus, bolsters the contention that the Hate Crimes Act is unnecessary. Part Four examines the New York law under both the federal and state constitutions and supplies a constitutional critique. This Part assesses the New York Hate Crimes Act in light of Supreme Court guidance surrounding the concept of restraint on free speech. As will be seen, the New York law might suffer infirmities under its own state constitution that it might not face under its federal counterpart. Part Five furnishes an overview of the various procedural and evidentiary troubles that might result in attempting to prosecute offenders under the Hate Crimes Act, and in so doing, elucidates many arguments that may be offered against the law. Part Six concludes that hate crime laws, as a whole, have flourished due to the politics involved in creating such legislation, and despite overwhelming evidence suggesting that bias-crime laws are unnecessary, this type of legislation continues to flourish--for no legitimate policy reason.

I. BACKGROUND OF HATE CRIME LEGISLATION

Beginning in the mid-1980s, both Congress and many state legislatures enacted hate crime legislation. (6) Typically, if the defendant was motivated by factors such as race, religion, or ethnicity, these statutes either provide increased penalties for existing crimes or create new crimes punishing specific acts of ethnic or racial intimidation. (7)

Federal statutes usually address bias-motivated criminal activity by enhancing penalties pursuant to the federal sentencing guidelines. (8) For example, if the defendant is found beyond a reasonable doubt to have intentionally selected, as his target, any victim or any property because of race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation, a three-step increase in the offense level is mandated. (9)

State statutes may be of either variety--enhancing the penalty for an existing crime if it was found to be motivated by bias or creating a new crime for specific acts of ethnic, racial, or religiously motivated intimidation. For instance, Wisconsin Penal Law provides for an increased penalty if the defendant intentionally selects the victim in whole, or in part, because of race, religion, color, disability, sexual orientation, national origin, or ancestry. (10) California hate crime legislation takes a somewhat different form. In first-degree homicide cases, one California statute precludes any possibility of parole if the defendant kills the victim because of his or her disability, gender, or sexual orientation. (11) Another California statute makes it an aggravating factor that enhances punishment to commit a crime against a victim based on his or her race, color, religion, ancestry, national origin, disability, gender, or sexual orientation for the purpose of intimidation or interference with his or her constitutional rights. (12) In Florida, the penalty for misdemeanors and felonies is reclassified if there is evidence of prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, or on the advanced age of the victim. (13) The Ohio State Legislature, however, has taken a distinctively different approach in the enactment of their ethnic intimidation law. (14) A defendant convicted of an enumerated substantive offense may also be convicted of ethnic intimidation if his or her actions were motivated by bias against someone because of their race, color, religion, or national origin. (15)

II. NEW YORK'S HATE CRIMES STATUTE

New York's Hate Crimes Act of 2000 is codified in Section 485 of the New York Penal Law. (16) The statute enumerates certain already existing criminal transgressions that may be considered a bias crime if the defendant selects the person against whom the crime is committed "because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person." (17)

If the defendant is convicted of any of the enumerated offenses in which the crime is classified as a C, D, or E felony or as a misdemeanor--and the crime is motivated by any of the factors spelled out in the statute--the crime for which he is convicted is "deemed to be one category higher than the specified offense." (18) If the defendant is convicted of an offense that is classified as a class B felony, the statute mandates an enhancement of the maximum indeterminate sentence, and if the defendant is convicted of a class A felony, the statute orders an enhancement of the minimum indeterminate sentence. (19) Essentially, the New York law is a sentence-enhancement statute modeled after the Wisconsin hate crime legislation that withstood United States Supreme Court scrutiny in Wisconsin v. Mitchell. (20)

A. Is The New York Hate Crimes Act Necessary or Desirable?

Assembly Speaker Sheldon Silver urged the New York Senate to enact bias-crime legislation and exhorted fellow lawmakers to enact The Hate Crimes Act:

   A hate crime is not an attack on one 
person or one piece of 
   property.... It's an attack on an entire community. It's an 
   attack on the freedom [our communities have] a right to 
   enjoy under our Constitution. It is only right, then, that 
   when we punish hate crime, we not only punish the act, but 
   make the act commensurate with the attack that crime 
   represents on our most fundamental principles of 
   government, that each of us is created equal and deserving of 
   equal protection and respect under the law. (21) 

Hillary Clinton, currently a United States Senator from New York, remarked that it was embarrassing that her state did not have a hate crime law, (22) and prosecutors touted the new statute as a necessary and as an essential tool in fighting hate and hate-related violence. (23)

Did the legislators do their homework? For example, did the legislature consider how prevalent bias-related crime is in New York? Is the criminal law an effective means for addressing the problem of ethnic, racial, and religious bias--or does the statute represent symbolic legislation enacted for the political goal of appeasing various demographic constituencies? Will the statute serve as an effective deterrent to bias-motivated crime? In general, do hate crime laws provide a remedy to the victim or do they help rid society of prejudice? Many legal scholars--including noted professor James B. Jacobs at New York University School of Law--argue that these statutes are almost completely ineffective for achieving any of their laudable goals. (24) An overarching concern is whether the government should attempt to legislate against and to punish subjective thought. (25)

B. How Prevalent Are Hate Crimes?

It is impossible to determine just how widespread the instances of hate-motivated violence are in New York. The legislative findings section that precedes the substantive New York statute attempts to shed light on this area of concern in claiming that crimes motivated by "bias and prejudice have become more prevalent in New York state in recent years." (26) The legislators, however, provide little empirical or statistical evidence to substantiate their claim. In fact, the legislative packet is quite sparse, consisting only of a letter from former New York City Mayor Rudolph Giuliani's legislative representative Anthony Piscitelli, a memorandum from the New York State Attorney General's Office, several private attorneys and a few lobbying groups. (27) The letter from the Mayor's office states that there were 390 bias incidents in New York City during 1999, which was down from 513 bias incidents during 1996. (28) Through May of 2000, however, these incidents slightly increased to 183--a growth of nine percent--compared to 166 during the corresponding time period the prior year. (29) The City responded to this increase by forming the Hate Crime Task Force. (30) Unfortunately, the Piscitelli letter does not mention how the incidence of bias crime compares to other criminal activity in the city.

A review of the New York City Police Department's CompStat statistics helps to put the actual prevalence of bias- related crimes in perspective. During 1999, for example, there were 155,859 major crimes committed in New York City that were also enumerated crimes under the Hate Crimes Act. (31) As noted above, there were 390 bias incidents during this same time period. (32) Without doing a statistical analysis--and even without the inclusion of the thousands of offenses not reported by CompStat that are enumerated crimes under the New York statute--it does not appear that bias-related crimes constitute an overwhelming problem in New York City. Even without considering the offenses enumerated under the Hate Crimes Act, which are not included in the CompStat figures, the incidence of bias-motivated crime in New York City appears to be less than 0.2 percent--fewer than one in five-hundred criminal acts. Given the extremely low reported incidence of bias crimes, one must wonder why the legislators found it imperative to enact special legislation to address an almost nonexistent problem. As is often the case in politics, it is not necessarily the pressing issue that gets attention, but rather, the cause that enjoys vocal proponents. (33)