"Hate crime" prosecution for flushing Koran down a toilet

[Rosenthal, Lawrence]

These hypotheticals ingeniously (to be expected considering the source) demonstrate that the line between Mitchell and R.A.V. can be indistinct.  That said, as a legal matter (putting policy concerns about the wisdom of enhancements in these cases aside), given the way the New York statute has been drafted, the statute, at least on its face, appears to me to be permissible under Mitchell, because enhancement is based on the defendant's motive and not an expressive element of the offense.  Still, hypos two and perhaps three involve such broad applications of the statute, on facts where there is little reason to believe that the offenses create the kind of social evils normally thought to justify hate crime laws, that a court could properly conclude that the statute was invalid as applied, since it has effectively become a pretext for viewpoint discrimination, at least in my judgment.  Constrast that, however, with what may be the actual facts of the Smulevich case, in which the defendant was trying to harass identifiable students.  The fortuity that Smulevich desecrated a Koran belonging to the University rather than one belonging to one of the Islamic students seems to me to provide no reason to distinguish Mitchell.
 
Larry Rosenthal
Chapman University School of Law


________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
Sent: Mon 7/30/2007 3:34 PM
To: CONLAWPROF at lists.ucla.edu
Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet



         Well, let me be precise.  Imagine five hypotheticals, all of which involve laws much like New York's, which mandates an enhancement for "intentionally commit[ting] the act or acts constituting the offense in whole or in substantial part 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, regardless of whether the belief or perception is correct."  (By the way, let me correct something I'd said earlier; I thought Shmulevich flushed his own copy of the Koran -- a different news story I read reports that he stole the Korans from the Pace University meditation room.)

        1.  Stanislav Shmulevich steals a Koran from Pace University, puts it in the toilet, and covers it with feces. He is prosecuted not just for the misdemeanor of damaging a book (which he seems to be guilty of), but for a felony hate crime, because he is acting "because of a belief ... regarding the ... religion ... of a person," there some Muslims with whom he had been having an argument -- perhaps he thought that the Muslims were bad because of their Islam, and he wanted to blaspheme against Islam as a way of getting back at them. (Note that he did not choose his victim because of the victim's religion; the victim of the property damage is Pace University.)

        2.  Shawn Eichman comes to New York to burn another flag, which he owns; but he burns it "recklessly" in a way that causes over $250 of damage to a bystander's property (which is to say with the awareness that his burning poses) a substantial and unjustifiable risk to such property). He is prosecuted not just for the misdemeanor of recklessly damaging property, but for a felony hate crime, because he is acting "because of a belief ... regarding the ... race, ... national origin, ... or religion ... of a person." Say, for instance, he was burning the flag to protest the lack of enough blacks or Hispanics in various parts of the administration (race), to protest what he sees as various Republican leaders' wrongheaded and excessive religiosity (religion), or to protest what he sees as the misconduct of American troops (assume that New York courts interpret "national origin" to include American citizenship or participation in American isntitutions).

        3.  An artist creates a display with a cross covered in human excrement, to protest what he sees as the historical crimes of Christianity (or, if you prefer, the Catholic Church's actions with regard to child molestation by priests). However, he does this on the premises of a public housing project, and refuses to leave when the public housing project authorities tell him to do so. Such failure to leave is normally a third-degree criminal trespass, which is a class B misdemeanor. But the artist is prosecuted for a class A misdemeanor because he committed the acts because of a belief regarding the religion of various Christians or Catholics against whom he is protesting.

        4.  A minister comes to the home of a local Episcopalian Church leader to remonstrate against him because of the Church's willingness to approve gay bishops. The leader at first grudgingly agrees to let the minister enter and discuss the matter, but eventually demands that the minister leave. The minister refuses to leave, which would normally make him guilty of class A misdemeanor second-degree criminal trespass -- but because the minister was motivated by a belief regarding the sexual orientation of the confirmed bishops, the minister is prosecuted for a felony hate crime.

        5.  Assume that New York law is revised to cover not just the offenses that are now specified in the hate crime statute, but also any other crime, such as blocking traffic and the like. This means that anyone who acts illegally in the course of a protest motivated by someone's race, religion, religious practice, sexual orientation, and the like -- for instance, steps out on the street in a way that blocks traffic, throws papers on the ground in violation of a littering ordinance, and the like -- would be eligible for extra punishment because of why he was protesting.

        Constitutionally permissible?

        Eugene

> -----Original Message-----
> From: Rosenthal, Lawrence [mailto:rosentha at chapman.edu]
> Sent: Sunday, July 29, 2007 5:41 PM
> To: Volokh, Eugene; CONLAWPROF at lists.ucla.edu
> Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
>
> As I understand the line between Mitchell and R.A.V.,
> enhancement may be based on motive but not on an an
> expressive component of an offense, then R.A.V. forbids
> enhancement, but if the statutory trigger for enhancement is
> motive, then enhancement is permitted.  Professor Volokh does
> not tell us what the relevant statutes say in his
> hypotheticals, but to the extent that he is hypothesizing
> statutes that use some variant of "giving offense to others"
> as the trigger for enhancement, then I believe that
> enhancement would be precluded by R.A.V.  If, however, the
> statutory trigger for enhancement is the defendant's motive,
> then I take it that enhancement is permitted unless the
> defendant can prove pretext under the principles articulated
> in Wayte v. US
> 
> Beyond that, while I am happy to agree that sentencing
> enhancements should not be used as a vehicle for viewpoint
> discrimination, at least absent pretext (which may well be
> present in some of the hypotheticals), I see no problem with
> limiting enhancement to those offenses in which special
> social harms flow from the offense.  I think it anomalous to
> conclude that the only way that the government can generate
> adequate deterrence for conduct that poses special social
> harms and requires special deterrence, such as crime
> motivated by religious animus, is by increasing penalties on
> all such crimes.  Shouldn't the legislature be free to act
> surgically, enhancing punishment only for the subset of
> offenses that pose special dangers, rather than being put to
> an all-or-nothing choice on enhancement?  Do we really need
> to treat as felons all persons who damage books merely
> because only a few (those who desecrate holy books) threaten
> to produce broad social strife?
> 
> Larry Rosenthal
> Chapman University School of Law
>
>
> ________________________________
>
> From: conlawprof-bounces at lists.ucla.edu on behalf of Volokh, Eugene
> Sent: Sun 7/29/2007 3:00 PM
> To: CONLAWPROF at lists.ucla.edu
> Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
>
>
>
>         Well, it seems to me far from clear that Mitchell
> supports extra punishment not just for the act of choosing a
> target based on race, religion, etc., but for the message
> that the actor is trying to communicate, and the offense that
> he is trying to cause.
>
>         But let me ask Larry and others who agree with him
> what they would do with these examples:
>
>         (1)  Someone burns a flag.  He is prosecuted for
> violating a law that bars the burning of objects in high fire
> danger zones; assume he is guilty of that.  But instead of
> this being a petty misdemeanor, he gets jail time as a
> sentence enhancement, because he was burning a flag, and
> because this was seen by the state as creating an extra
> social harm of offending people, desecrating an important
> national symbol, etc.
>
>         (2)  Someone puts up an art installation with a
> crucifix in urine or excrement.  He is prosecuted for
> violating a law that bars the placement of human waste in
> public places; assume he is guilty of that.  But instead of
> this being a petty misdemeanor, he gets jail time as a
> sentence enhancement, because he was desecrating a holy
> object (assume it's one that belonged to him), and because
> this was seen by the state as creating an extra social harm
> of offending people, arousing religion-based antagonism,
> making members of certain religious groups feel put upon, and so on.
>
>         (3)  Someone posts on a telephone pole Communist
> propaganda expressing hatred of capitalism and capitalists,
> and praising violent revolution.  He is prosecuted for
> violating a law banning attaching things to city-owned
> telephone polls.  But instead of this being a petty
> misdemeanor, he gets jail time as a sentence enhancement,
> because he was expressing a hateful view, and one that
> creates an extra social harm of offending people, creating an
> atmosphere in which people fear violence, and exacerbating
> social divisions.
>
>         (4)  Someone who is engaged in a stridently
> anti-Chinese "freedom for Tibet" demonstration in front of
> the Chinese consulate, is standing on the street, without a
> permit to demonstrate in the street.  He is prosecuted for
> blocking traffic.  But instead of this being a petty
> misdemeanor, he gets jail time as a sentence enhancement,
> because his speech was seen by the state as creating an extra
> social harm of offending people, potentially causing friction
> with the Chinese government (cf. the dissent, and Judge
> Bork's lower court opinion, in Boos v. Barry), and making
> some Chinese feel put upon and unfairly singled out in ways
> that they feel are ethnically bigoted.
>
>         I take it that in all these situations, the view of
> those who support the sentence enhancement for Smulevich
> would be that enhanced penalties are perfectly constitutional, right?
>
>         Eugene
>
>
> Larry Rosenthal writes:
>
> > We know very little of the facts of the from the brief
> article, but we
> > do know that the People believe that they can prove beyond
> reasonable
> > doubt that the books were desecrated by Smulevich, and that
> they can
> > prove Smulevich's animus beyond reasaonable doubt.  This
> suggests to
> > me that Smulevich was not engaged in some sort of private
> ritual; he
> > was probably taunting Islamic students.  (I also doubt that he was
> > desecrating his own books, but I doubt that this matters for
> > constitutional purposes, although a jury might be more
> sympathetic to
> > him if that turns out to be true)
> >
> > The First Amendment protects "speech," not "motive."  The
> protection
> > for speech, at least arguably, supports R.A.V.'s holding
> that criminal
> > laws that make a form of expression a basis for enhanced punishment
> > are unconstitutional.  But Wisconsin v. MItchell is clear that when
> > enhancement is based on motive, there is no First Amendment
> > protection, since the legislature is free to conclude that certain
> > motives warrant an extra measure of punishment or
> deterrence.  Surely
> > taunting fellow students based on their religious
> preference, in our
> > society, qualifies as a circumstance in which the legislature could
> > think additional punishment or deterrence is warranted.  Nothing in
> > MItchell requires that the motive be directed toward a particular
> > individual in order to survive constitutional attack -- although it
> > may well be the case that a discrete group of Islamic students were
> > the intended targets of Smulevich's acts.
> >
> > Larry Rosenthal
> > Chapman University School of Law
> >