State Statutes Governing Hate Crimes

Publication Date: September 2005

Publisher: Library of Congress. Congressional Research Service

Author(s):

Research Area: Justice

Type:

Abstract:

Most state hate crimes laws are similar to a model proposed by the AntiDefamation League which covers not only anti-Semitic crimes, but all hate crimes. The model law also includes an institutional vandalism section which increases the criminal penalties for vandalism which covers houses of worship, cemeteries, schools, and community centers. Almost every other state has some form of legislation which can be used to prosecute such crimes.

The essence of the Anti-Defamation League (ADL) legal approach is the penalty-enhancement concept which was upheld in the landmark decision by the Supreme Court in Wisconsin v. Mitchell, 508 U.S. 476 (1993). The Court was unanimous in upholding the constitutionality of the Wisconsin penalty-enhancement hate crime statute which was based on the ADL's model. In Mitchell, the Court noted that expressions of hate are protected by the First Amendment's free speech clause and they are not by themselves criminalized. However, criminal activity which has been motivated by hate may be made subject to an enhanced sentence. In essence, the defendant's sentence may be enhanced if he intentionally selects his victim based upon his perception of the victim's race, religion, national origin, sexual orientation or gender.

Adjustments in state law, regarding the respective fact finding authority of the jury and the court in criminal cases in light of Apprendi v. New Jersey, 530 U.S. 466 (2000), and Booker v. United States, 125 S. Ct. 738 (2005), are beyond the scope of this report. This report will be updated periodically as legislative actions within the states occur.