Hate-Crime Laws Back Before Supreme Court

0 Comments | Insight on the News, Jan 10, 2000 | by Frank J. Murray

More than 40 states now have hate-crime laws, but a case before the nation's highest court will challenge `the underlying constitutional principle about a double standard.'

The Supreme Court has agreed to decide a key issue in the debate about punishing "hate crimes" more severely than similar offenses committed with other motives. The justices will decide whether prosecutors must prove beyond a reasonable doubt that a crime was driven by outlawed motives -- as most states and the federal government demand -- or if it suffices to persuade a judge after the verdict based on a preponderance of the evidence.

"The underlying constitutional principle about a double standard is there, too, and I'm going to bring it out," says Joseph D. O'Neill, the lawyer who has filed the appeal for Charles C. Apprendi Jr. of Vineland, N.J. Apprendi is serving 12 years in prison for firing at the house of the only black family in his neighborhood.

Vineland Police Det. Dennis D'Augostine testified that when Apprendi admitted firing eight shots at the home of Michael and Mattie Fowlkes and their three children at 2 a.m. on Dec. 22, 1994, he said he did so "because there were black people living there." Apprendi denied he make the statement, claiming that he fired randomly when the house's purple door caught his attention. He avoided more serious charges, such as attempted murder and assault, by pleading guilty to tiring a gun and having a bomb and admitted at sentencing that he intended to frighten or harass the family.

Had there been no hate-crime law, Apprendi would have faced a maximum of 10 years in prison. The judge could have upped the penalty to 20 years but settled on 12.

According to O'Neill, however, the law under which Apprendi was sentenced was written to appease public opinion. "Politics results in legislatures oftentimes ... supplying the needs of the public," says O'Neill, a longtime friend of the Fowlkes family. (He had to turn down the Fowlkes' request to sue Apprendi, whom he already was defending in criminal court.)

Opinions differ about whether the case from New Jersey could jeopardize hate-crime laws on the books of 40 other states, the District of Columbia and the federal government. "I think that people are going to try and bootstrap this challenge into an overall challenge of hate-crime statutes," predicts Michael Lieberman, Washington counsel for the Anti-Defamation League. "What's not at issue is the concept of penalty-enhancement for hate-crime statures."

The ADL lobbies for hate-crime laws using a model statute that requires a motive be proved as an element of the crime and that the motive be alleged in the indictment and decided by the trier of fact, usually a jury. New Jersey and a handful of other states, including Mississippi, Alaska and New Hampshire, let sentencing judges decide the issue.

RELATED ARTICLE: Are State and City Trade Bans Constitutional?

The Supreme Court also has agreed to decide whether state and local governments can protest human-rights abuses in other nations by restricting purchases from companies conducting business in those countries.

The high court will rule next year on the constitutionality of Massachusetts' Burma Law, adopted in 1996. The law bars the state from buying goods and services from any company doing business with Burma (which calls itself Myanmar), whose military dictatorship has been accused of drug trafficking, torture and using slave labor. At issue is whether the law supersedes federal laws regarding international trade.

The pending decision has far-reaching implications, since many other states and cities have adopted similar measures involving Burma and other countries, such as China and Cuba, cited for human-rights abuses. Advocates hope that the laws will help stem the flow of money into those nations and spur political reform. During the 1980s, many states and cities boycotted companies that did business in South Africa because of racial apartheid in that country.

But major corporations argue that such unilateral action threatens their ability to conduct business overseas and jeopardizes U.S. trading influence worldwide. "One would think that one law on the books in Takoma Park [Md.] would not have a major effect," says Frank Kittredge, president of the National Foreign Trade Council, a group of U.S. multinational corporations. "But when you have 37 different local governments with these protest laws, the cumulative effect is U.S. businesses are viewed as unreliable by foreign partners."

The foreign trade council's 580 members include Rockwell, Amoco, Boeing, Citibank and IBM. Together, they account for about 70 percent of the nation's nonagricultural exports and 70 percent of the foreign investment in the United States. Four of its members, including Eastman Kodak and Motorola, have been forced to pull out of Burma since Massachusetts passed its boycott law in 1996.

By Timothy Burn