Ask the Scholar
Document scope · 1 page
Scholar
Ask about this object, its catalog metadata, its source description, or the page inventory.
For page-specific OCR and visual context, open one of the page chats.
Scholar Source Context
Document identity
localId
286186005
label
Hate Crimes Legislation
core
doc
dtoType
document
citationUrl
pageCount
1
Source metadata
id
286186005
contentType
document
title
Hate Crimes Legislation
citationUrl
identifierLocal
08161-045
collections
Records of the White House Office of Policy Development (George H. W. Bush Administration)
Marianne McGettigan Subject Files
imageCount
1
hasImages
yes
source
import
hasTranscription
no
Source extras
naId
286186005
levelOfDescription
fileUnit
recordType
description
ocrSource
nara-archive
Single page context
seq
1
pageIndex
0
type
document
mediaId
06b914e5ce6df48a
ocrText
Originally Processed With FOIA(s):
FOIA Number:
1998-0095-F
1998-0095-F
FOIA
MARKER
This is not a textual record. This is used as an
administrative marker by the George Bush Presidential
Library Staff.
Record Group/Collection:
George H.W. Bush Presidential Records
Collection/Office of Origin:
Policy Development, White House Office of
Series:
McGettigan, Marianne, Files
Subseries:
OA/ID Number:
08161
Folder ID Number:
08161-045
Folder Title:
Hate Crime Legislation
Stack:
Row:
Section:
Shelf:
Position:
G
18
7
2
1
10/02/92
17:00
OMB LRD/ESGG
001
EXECUTIVE OFFICE OF THE PRESIDENT
URGENT
OFFICE OF MANAGEMENT AND BUDGET
October 2, 1992
LEGISLATIVE REFERRAL MEMORANDUM
LRM #I-5398
TO: Legislative Liaison Officer -
JUSTICE - W. Lee Rawls - 514-2141 - 217
FROM:
Assistant JAMES J. JUKES Director (for) for J
Legislative Reference
OMB CONTACT:
Douglas STEIGER (Direct Line: 395-3386)
Secretary's line (for simple responses) : 395-3454
SUBJECT:
Proposed Statement of Administration Policy
RE: HR 4797, Hate Crime Sentencing
Enhancement Act of 1992
DEADLINE:
COB TODAY October 2, 1992
COMMENTS: Attached FYI is a draft Justice views letter which
is the basis for this SAP. The bill may go to the floor
tonight or tomorrow.
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship to
the program of the President, in accordance with OMB Circular A-19.
Please advise us if this item will affect direct spending or
receipts for purposes of the "Pay-As-You-Go" provisions of Title
XIII of the Omnibus Budget Reconciliation Act of 1990.
CC:
Boyden Gray
Lee Liberman
Betsy Anderson
Bob Damus
Jim Duke
Berrie martie
Jane Hale
Ken Schwartz
10/02/92
17:01
OMB LRD/ESGG
002
LRM #I-5398
RESPONSE TO LEGISLATIVE REFERRAL MEMORANDUM
If your response to this request for views is simple (e.g.,
concur/no comment) we prefer that you respond by faxing us this
response sheet. If the response is simple and you prefer to
call, please call the branch-wide line shown below (NOT the
analyst's line) to leave a message with a secretary.
You may also respond by (1) calling the analyst/attorney's direct
line (you will be connected to voice mail if the analyst does not
answer) ; (2) sending us a memo or letter; or (3) if you are an
OASIS user in the Executive Office of the President, sending an
E-mail message. Please include the LRM number shown above, and
the subject shown below.
TO:
Douglas STEIGER
Office of Management and Budget
Fax Number: (202) 395-3109
Analyst/Attorney's Direct Number:
(202) 395-3386
Branch-Wide Line (to reach secretary): (202) 395-3454
FROM:
(Date)
(Name)
(Agency)
(Telephone)
SUBJECT:
Proposed Statement of Administration Policy
RE: HR 4797, Hate Crime Sentencing
Enhancement Act of 1992
The following is the response of our agency to your request for
views on the above-captioned subject:
Concur
No objection
No comment
See proposed edits on pages
Other:
FAX RETURN of
pages, attached to this
response sheet
10/02/92
17:01
OMB LRD/ESGG
003
October 2, 1992
(House)
H.R. 4797 - Hate Crimes Sentencing Enhancement Act of 1992
(Schumer (D) NY and Schiff (R) NM)
The Administration recognizes the seriousness of offenses
motivated by prejudice and has no objection to House passage of
H.R. 4797. However, the Administration will seek Senate
amendments to address the concerns presented below:
O
The bill mandates enhancements of three offense levels for
hate crimes. However, it also mandates that the U.S.
Sentencing Commission (1) assure reasonable consistency with
other guidelines; (2) avoid duplicative punishments; and (3)
take into account mitigating circumstances which might
justify exceptions. In cases where these mandates are
mutually inconsistent, it is not clear which is binding.
The bill may be subject to challenge in light of the Supreme
Court's recent decisions in R.A.V. Y. City of St. Paul and
(Justice please supply].
*******
10/02/92
17:01
OMB LRD/ESGG
004
VLA
VSID JUBES
VII 002/005
1
U.S. Department of Justice
Office of Legislative Affairs
ADVANCE
Office of the Assistant Anorney General
Reddington, DC 20530
Honorable Richard G. Darman
Director
office of Management and Budget
Washington, D.C. 20503
Dear Mr. Darman:
This responds to your request for the views of the Department
of Justice on H.R. 4797, the Hate Crimes Sentencing Enhancement Act
of 1992.
This bill would require the United States Sentencing
Commission to promulgate guidelines or amend existing guidelines to
provide sentencing enhancements of not less than 3 offense levels
for offenses that are hate crimes. The term "hate crime" is
defined as a crime motivated by hatred, bias, or prejudice, based
on the actual or perceived race, color, religion, national origin,
athnicity, gender, or saxual orientation of another individual or
group of individuals. In addition, the bill directs that the
Commission shall assure reasonable consistency with other
guidelines, avoid duplicative punishments for substantially the
same offense, and take into account any mitigating circumstances
which might justify exceptions.
The Department of Justice recognizes the seriousness of
offenses motivated by prejudice. However, we have some concerns
about this bill as presently drafted.
We note that the bill purports to mandate an enhancement of at
least three offense levels for any hate crime. Nevertheless, the
bill also purports to mandate that the Commission: (1) assure
reasonable consistency with other guidelines, (2) avoid duplicative
punishments, and (3) take into account mitigating circumstances
which might justify exceptions. Therefore, in our view, it is
unclear whether the mandatory minimum three-level enhancement for
hate crimes is really mandatory, or whether it is subject to
exceptions for the reasons noted above.
The bill is relatively etraightforward in its application to
crimes that do not involve motivation based on bias as an element
of the offense. However, the bill is less clear as to whether it
is intended to apply to crimes in which bias motivation is an
element. For example, 18 U.S.C. 5 245 requires a showing that the
10/02/92
17:02
OMB LRD/ESGG
005
10/02/82 15:52
OLA
+++ OMB JUKES
@
003/005
2
defendant interfered with enumerated federally protected rights
because of the victim's race, color, religion, or national origin.
Title 42 U.S.C. I 3631 prohibits interference with fair housing
rights because of race, color, religion, sex, handicap, familial
status, or national origin.
Under the existing sentencing guidelines, there are two
alternative methods for calculating sentences for civil rights
offenses: (1) a default level, which sets the minimum sentence for
a civil rights offense, or (2) the underlying offense plus two
additional levels. The defendant's sentence is based on the higher
alternative calculation. Thus, a racially motivated arson would
produce an offense lavel of 26 (24 for the underlying offense of
arson pursuant to 2K1.4 (a) (1) plus the two-level civil rights
enhancement in 2H1.3 (a) (3)), which is greater than the default
level of 10 (2H1.3 (a) (1)).
with less serious underlying conduct, such as vandalism, the
default level of 10 would be higher than that for the underlying
offense plus the two level civil rights enhancement (4 for property
destruction in 2B1.3(a) plus the two-level enhancement in
2H1.3 (A) (3)
Apparently, H.R. 4797 would require increasing the existing
two-level civil rights enhancement to at least three levels when
calculating the sentence by using the underlying offense plus a
civil rights enhancement. However, as noted above, the bill
requires the Commission to "avoid duplicative punishments for
substantially the same offense." When calculating the sentence
according to the default level, which would already include
consideration of the civil rights element of the offense, the
addition of an enhancement for racial or other bias motivation
would run afoul of the injunction against duplicative sentences.
We also note that the enhancements would not cover crimes
motivated by disability or familial status, although both of these
motivations are included in 42 U.S.C. $ 3631. On the other hand,
the inclusion of crimes motivated by gender bias raises distinct
definitional problems. For example, many argue that all sexual
offenses are motivated by batred, bias, or prejudice based on
gender. Is it the intent of the bill to require enhanced
punishment of all such crimes? Notably, Congress did not include
crimes motivated by gender among those covered by the Hate Crimes
Statistics Act, 28 U.S.C. $ 534 note. We do not question the
existence or seriousness of crimes motivated by gender, but urge
further consideration of the consequences of including gender in
this bill.
In Dawson V. Delaware, 112 S. Ct. 1093 (1992), the Supreme
Court held that the introduction at the penalty phase of evidence
of defendant's membership in a white racist prison gang violated
the First Amendment where the evidence was not connected in any way
10/02/92
17:03
OMB LRD/ESGG
006
10/02/92 18:83
OLA
... OMB JUKES
004/005
3
to the act for which the defendant was convicted. The Court,
however, rejected the argument that the First Amendment erects a
par se barrier to admission of evidence concerning a defendant's
beliefs and associations at sentencing. H.R. 4797 would appear to
be constitutional under Dawson.
However, H.R. 4797 may be subject to challenge in light of the
Supreme Court's decision in R.A.V. V. City of St. Paul, 112 S. ct.
2538 (1992). There the Court invalidated St. Paul's Bias-Motivated
Crime Ordinance, which criminalized the display of a symbol or
object "which one knows or has reasonable grounds to know arouses
anger, alarm or resentment in others on the basis of race, color,
creed, religion or gender The Court found that the
ordinance -- although directed at "fighting words" not generally
protected by the First Amendment -- was a content-based restriction
on speech because "[d]isplays containing abusive invective, no
matter how vicious or severe, are permissible unless they are
addressed to one of the specified disfavored topics. Those who
wish to use 'fighting words' in connection with other ideas -- to
express hostility, for example, on the basis of political
affiliation, union membership, or homosexuality - are not
covered." Id. at 2547. Because the city did not demonstrate that
the ordinance was narrowly tailored to serve compelling
governmental interests, the ordinance was held to be invalid under
the First Amendment.
Arguably, the sentencing enhancement proposal in H.R. 4797 is
subject to a similar analysis. Like the ordinance at issue in
B.A.V., the proposal would single out for more severe treatment
those crimes motivated by certain disfavored beliefs. Thus, the
proposal might be considered to impose a content-based penalty on
certain offenders, and would have to be justified as a statute
narrowly tailored to serve a compelling governmental issue. The
Court's opinion in R.A.V. expressed considerable skepticism of the
claim that the st. Paul ordinance was reasonably necessary to serve
what the Court agreed were compelling governmental interests.
Application of similar reasoning here could lead to invalidation of
the sentencing enhancement.
Because the Court's opinion in R.A.V. did not consider Dawson,
it is difficult to predict how the Court would resolve any tension
between the decisions. We believe, however, that substantial
arguments exist in support of a sentencing enhancement scheme that
would distinguish the decision in R.A.V. For example, it may be
significant that the St. Paul ordinance was specifically directed
1 Even if the proposal were to survive this strict scrutiny
under the First Amendment, it might be subject to the sort of
overbreadth analysis that the Justices concurring in R.A.V. would
have used to invalidate the St. Paul ordinance. See, e.g., 112
S. ct. at 2550 (White, J., concurring).
10/02/92
17:04
OMB LRD/ESGG
007
4
at expressive activities (although those were found to be "fighting
words"), whereas the penalty enhancement provision in H.R. 4797
would apply in the context of criminal activities not primarily
expressive in nature. As the R.A.V. court stated, "[w]here the
government does not target conduct on the basis of its expressive
content, acts are not shielded from regulation merely because they
express a discriminatory idea or philosophy." 112 S. ct. at
2546-2547.
It should be noted, however, that two state Supreme Courts
recently considered similar sentencing enhancement provisions and
found them unconstitutional under the First Amendment. see: State
v. Mitchell, 169 Wis. 2d 153, 485 N.W. 2d 807 (Wis. 1992) , State V.
Hyant, 64 Ohio St.3d 566 (1992).
The Department of Justice has concerns with the present
legislation as proposed, but we would welcome the opportunity to
review subsequent drafts of the bill should our reservations be
addressed.
Sincerely,
W. Lee Rawls
Assistant Attorney General