Common-law jurisprudence mightily informs the way we in the United States view the criminal law. Axiomatic within this system of received wisdom are familiar procedural principles such as the burden of proof being placed on the prosecution and the standard of proof being that of beyond a reasonable doubt. Axiomatic, too, are substantive principles going to the very definition of crimes. The purpose of this paper is to focus on the latter principles, ultimately to determine the respective roles of intent and motive, as posited in the context of "hate crimes," to determine if development of hate crime definitions might have unintended consequences.

Conceptual Framework of Substantive Criminal Law

One helpful way to view substantive criminal law is by way of a simple (indeed, overly simple, but that point will be addressed later) equation:

corpus delicti = actus reus + mens rea

The conceptual body of the crime, its substantive definition, is the sum of the defined guilty act (conduct) and the defined concurrent guilty mind (intent).

Closer analysis yields the requisite components of the elements. In concept, the actus reus includes the basic act/omission requirement (intent without more being an insufficient basis for punishment), as well as the requirements of voluntari-ness, legality and specificity (Kaplan, et al., 1996). None of these are necessarily simple, of course. The voluntariness principle must be nimbly applied in cases of automatism and sleepwalking (Moenssens, et al., p. 958). According to Kaplan, et al., the principle of legality itself extends to no less than four sub-principles of "publicity, prospectivity, and specificity, but also of democracy," leading to the summative conclusion that the act requirement means that "punishment must be for (1) past (2) voluntary (3) bad (4) conduct (5) specified (6) in advance (7) by statute" (p. 123). Obviously, the last element conflicts with a purely common-law analytical framework, but for present purposes the conflict is of no consequence; later, the conflict will be of greater consequence.

Except for the rare case of strict liability, and by extension, vicarious liability, which exceptions render our equation less than universally applicable by requiring no intent at all, the corpus delicti requires that the actor act with a particular state of mind or intent. It is this requirement that provides the moral basis to the criminal law’s social control function, a matter of no small moment in a system or ordered liberty. Notions of culpability and blameworthiness are intertwined with those of wrongdoing and responsibility in this public policy matrix.

What, then, is to be said of mens rea? The common law of crime generally required manifest intent to do an act, an intent, moreover, that was concurrent with the act. Whether that requirement was the chicken or the egg, most people have what Kaplan, et al., called "our core image of the morally blameworthy person" as "one who intentionally harms another person" (p. 195). Vast areas of what can be termed affirmative defenses ("I did the act, but . . .") revolve around this (as does the essentially overlapping actus reus requirement of voluntariness). Thus, the affirmative defenses of justification and excuse typically go to the lack of mens rea.

Justifications such as self-defense and necessity (choice-of-evils) and excuses such as insanity and duress offer variations on the theme that acts without the proscribed intent are not crimes.

Still, that proscribed intent is not always manifest intent; i.e., the net of the criminal law is wider than it would be were subjective intent to cause harm a sine qua non of substantive criminal definition. Beyond the concept of implied, imputed, or constructive intent at the heart of felony murder and the equally policy-based legal fiction of transferred intent lie mental states evincing what may be termed quasi-intent. The common law’s limited but significant inclusion of criminal negligence (roughly equivalent to tort law’s gross negligence), recklessness and willful and wanton misconduct – all lacking the manifest intent characteristic of either common law intent level, specific or general – clearly indicate that punishable acts could hinge on lesser mental states. The Model Penal Code, moreover, streamlined the whole state-of-mind schema of the common law into a four-level hierarchy of culpability states. Under the MPC, crimes would be defined as including the requisite culpability state of purposeful, knowing, reckless, or negligent conduct. But where in any of this is the actor’s motive, the reason why the actor acts?

The traditional answer in common-law jurisprudence is that the actor’s state of mind, rather than the rational calculus that precipitated that state of mind, constitutes the central concern. It was no accident, of course, that the formula for corpus delicti offered earlier included no express motive component. Illustrative of the traditional conventional wisdom in this regard is Arkansas Supreme Court Justice Hickman’s dissent in Midgett v. State: "[w]e have never held motive relevant to murder, nor do we even try to look into the warped minds that commit murder to make their acts rational." Not all agree, however, and not simply in the context of insanity-induced excused acts or diminished capacity lowered mens rea acts. Pillsbury noted that "Anglo-American criminal law, with its emphasis upon mental states , clearly concerns itself with the ‘why’ of criminal acts and so makes a basic inquiry into moral disposition" (1990, p. 447). Others might quibble with Justice Hickman in that motive is highly relevant as circumstantial evidence of intent in many cases, especially homicide cases.

Only state of mind even remotely approaches the notion of motive is the highest state, specific intent (essentially the MPC’s purposeful culpability state), but the contours of the approach are the subject of scholarly debate. Moreover, students of the common law have long noted, as the Third Circuit did, that concepts such as "intent, purpose and premeditation are malleable and at their margins imprecise" (U.S. v. Pohlot, 1987), so it should surprise no one that the debate is a lively one. Before joining the debate as it involves hate crime definition and operation, some observations on hate crimes are in order.

Hate Crimes: A late-20th Century Construct

Hate crimes are variously defined but two generic approaches seem to get at the heart of the matter. One would define a hate crime as "violent acts motivated by bigotry" (Winters, 1996, p. 13). This opens up the issue of what is bigotry as well as begs the question regarding the motive-as-part-of-the-crime-definition issue. The purpose of this paper would obviously not be well served by such a choice. The other definition, used by the author in a course on the subject, posits that a hate crime is "violence or the threat of violence directed against persons targeted primarily on the basis of their ostensible membership in a larger group." The larger group could be one over which the person’s membership is voluntary, such as a religious denomination or sect, one over which the person’s membership is nonvoluntary, such as a racial or ethnic group, or once over which the persons’ membership could arguably be voluntary or nonvoluntary, such as sexual orientation. The ostensibility parameter precludes any mistake-of-fact defense in cases wherein, for example, a victim of assault chosen because the perpetrator thought he was Jewish is in reality Gentile.

Regardless of specific definition, hate crimes are at once probably as old as humankind in a behavioral sense but very new, indeed, in a taxonomic sense. As a category of legal wrong, hate crimes are more than myths conjured up via social construction of reality, but some of the characteristics of "moral panic" are none-theless fully in evidence. First, more than a few people are involved in what may be called the "hate crime industry," making it a career – and making a good living – monitoring the activities of groups likely to espouse, sponsor, commit, or simply defend such acts. Second, as with terrorism generally, the media devote attention to incidents labeled as hate crimes in a manner disproportionate to their frequency or severity. Third, moral entrepreneurs in both the industry and the media, and of course in targeted groups, prevail upon members of and responsive (some would argue pandering ) candidates for the executive and legislative branches of government to demand and ultimately to pass and enforce punitive laws (Jenness & Broad, 1997).

Moral panic distorts reality, thereby providing a distinctly weak, if not illusory, basis upon which society is earnestly implored to reorder its priorities. An organized "urgency insurgency," for lack of a better term, pushes dramatic and often drastic policy change. Common-sense limits to common-sense change are likely to be exceeded in such an emotionally charged atmosphere, as if to prove Voltaire’s assertion that common sense is not so common.

Moral panic notwithstanding, hate crimes on the books are at present either modest common-sense civil rights laws dealing not so much with governmental as with purely private action and laws that make more punitive the sentencing of one who has been convicted of committing an ordinary crime, but with aggravating hateful motive regarding the victim selected. Hate crimes, then, may be viewed as comprising two primary types, viz., acts whose criminality is totally dependent upon their being motivated by hate and acts whose criminality is independent of hate, but which are considered all the more reprehensible – and warranting all the more severe punishment – when accompanied by hateful motivation. So far having generally stayed within reasonable limits, these laws are widely accepted as at least probably necessary and generally appropriate, as was the case in Wisconsin v. Mitchell, where enhanced punishment of a generic crime of violence motivated by hate was upheld by the Supreme Court.

Sometimes legislative bodies, in their zeal to regulate hateful acts – critics would say in their zeal to regulate hateful thought – do in fact exceed reasonable limits. The year before the Mitchell decision, in R.A.V. v. City of St. Paul, the Supreme Court struck down as violative of First Amendment free speech a city ordinance banning the display of any symbol that "arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion, or gender." Some of the language in Mitchell would seem to send a more positive message to hate-crime-law advocates than the one most read into R.A.V., but outside of property desecration laws, most state hate crime laws are in any event of the penalty enhancement variety upheld in Mitchell, a form originally proposed by the Anti-Defamation League in its model statute.

This is not to say that hate crime enactment/enforcement is intrinsically good public policy. Sullivan (1999) notes that

Rape . . . is not classified as a "hate crime" under most existing laws, pitting feminists against ethnic groups in a battle for recognition. If, as a solution to this problem, everyone, except the white straight able bodied male, is regarded as a possible victim of a hate crime, then we have simply created a two-tier system of justice in which racial profiling is reversed, and white straight men are presumed guilty before being proven innocent, and members of minorities are free to hate them as gleefully as they like. But if we include the white straight male in the litany of potential victims, then we have effectively abolished the notion of a hate crime altogether. For it every crime is possibly a hate crime, then it is simply another name for crime. All we will have done is widened the search for possible bigotry, ratcheted up the sentences for everyone and filled the jails up even further.

As of this writing, an election year issue is being generated out of the Republican Congressional leadership’s lack of zeal in pressing for a reconciliation bill to overcome minor differences in the two hate-crime bills passed by the House and Senate. It remains to be seen what the specifics would be of any hate crime law ultimately passed, but it is perhaps worthy of note that at least two major arguments are being offered by opponents. First is the notion that crimes of violence are no less outrageous simply because the perpetrator was not motivated by hate (the second-class victim argument). Second is the bedrock notion of federalism, viz., the police power resides in the states. That is, the federal government has no business criminalizing such acts, since the states already have a multitude of crimes already on the books by which to prosecute those who engage in violence or the threat of violence directed toward persons based on their ostensible membership in a larger group. This is true in all states, including the minority of states with no separate hate-crime laws.

To be sure, a federal hate crimes law protecting those engaged in exercising a federal right from violence based on their race, religion, or national origin, is already on the books (Levin & McDevitt, 1993). Still, this statute is infrequently enforced, both because of its narrow parameters and because its raison d’etre, hostility or indifference by some states in the past to prosecuting those engaged in violence directed toward some groups of its people no longer obtains. Proposed expansion of the original act, embracing not only traditionally protected groups but those targeted because of disability, gender and sexual orientation, serves up a host of problems (e.g., would every rape now be a federal crime?) and violates, in the opinion of opponents, the proper division of powers between the state and federal governments.

To the argument of hate-crime legislation proponents that hate crimes deserve stronger punishment because each incident has a ripple effect beyond the actual victim, placing all in the larger group in fear, some would retort that though this may be true for some violent acts of hate, the typical hate crime is not any more likely to spread fear and anxiety to larger groups of society than any other violent act (Jacobs, 1993). No one feels as safe as before when a neighbor is robbed or burglarized or even when the statistical crime rate goes up in a community.

If the purpose of hate-crimes laws is to deter hate crimes, a decrease in hate crimes may in fact result from their enactment and enforcement. Still, as Jacobs (1993) noted, "[r]educing prejudice and hate must be a high priority for American society, but more criminal law is the wrong tool. We should exhaust all other strategies of social education and institution-building before pinning our hopes on

the criminal law, which has, at best, a very unimpressive record in ameliorating social problems."

In sum, a hate crime is violence, or the threat of violence, directed toward a person on the basis of ostensible membership in a larger group. Politically strong forces, aided at least by extensive media coverage of alleged hate-crime incidents and arguably by an unwritten but real media agenda, have been pushing with notable success for expanded hate crime laws at both the state and federal levels. Traditional civil rights and other social movement organizations, from the Anti-Defamation League and mainstream African-American groups to radical homosexual rights organizations, have lobbied tirelessly in the effort. Resulting laws that contravene fundamental rights such as freedom of speech will not pass constitutional muster, but others, including penalty-enhancement statutes, almost certainly will. But at what price common-law tradition? And with what unanticipated consequences in the substance and administration of criminal law?

Motive as Part of mens rea in Hate Crimes

Recall the first of the two generic hate crime definitions considered earlier: "a violent act motivated by bigotry." Intending the violent act is a necessary but not sufficient condition for conviction – the intent must be informed by bigotry. Stating the matter a different way, the mens rea must stem from, must be motivated by bigotry. The preferred generic definition, focusing on the perpetrator’s conscious selection of a victim on the basis of the victim’s ostensible membership in a larger group, arguably presupposes such motivation, as well, but knows the virtue of greater objectivity. Traditional common law mens rea cared not about the actor’s motive -- in part because of the difficulty in determining and then proving beyond a reasonable doubt that source of intent (Jacobs, 1993) -- save in the sense of proof of intent by circumstantial evidence as to its source. But motive as an intrinsic component of mens rea?

One response, beyond the common-sense observation that the common law evolved mightily over the centuries, so why should modern statutory law be bound within a historical prison, is that the typical hate crime law is not a stand-alone offense, but rather a penalty enhancement device that relates not so much to guilt as to appropriate sanction. This would strike some as an essentially procedural nicety that nevertheless has substantive dimensions. One is reminded of Maine’s observation that the substance of the common law is "secreted in the interstices of procedure," a most telling point in the context raised by Rosen (1993): although the Wisconsin statute upheld in Mitchell deal spoke of those who "intentionally select" their victims because of group membership, which would require proof beyond a reasonable doubt, many other state statutes (and at least the federal House Bill now in conference committee) posit a notably lesser quantum of proof such as that the crime "evidences prejudice." Additionally, Rosen notes that the Wisconsin law does not formally mandate judges in such cases to determine hateful motivation, an important discretionary element of special significance, given the observation by Jacobs (1993) that low-level cases that otherwise might have triggered a nolle prosequi or dead-docket decision by prosecutors will likely be prosecuted after attaining the label of hate crime. Discretion, therefore, can cut either way.

Others concerned with motive as part of mens rea in hate crimes base their opposition on constitutional grounds. If bigotry and hate become punishable by the mechanism discussed above, then a chilling effect will abridge not only free speech, but freedom of thought itself (Gellman, 1991). Perceptions of a first bold step toward an Orwellian nightmare resonate with many at a time of the FBI’s "carnivore" and what is for some an oppressive climate of political correctness. In addition to these fundamental constitutional concerns are equal protection objections related to the second-class-victim concept and statute-specific concern about vagueness and overbreadth. Finally, as Rosen (1993) noted, there is always

the danger that "technically constitutional laws can be applied in unconstitutional ways."

One counter-response is that opposition to hate crime laws mirrors 1960s opposition to civil rights laws, in that both are law-based responses to conduct that has come to be seen as intolerable by society. Even conceding that criminal penalties are sanctions of an entirely different character that civil liability, propo-nents of hate crimes offer the observation of Martin Luther King, Jr. in their hope to achieve e pluribus unum by protecting the pluribus: the government through law may not be able to legislate morality, but it can regulate behavior. Ideally, such proponents argue, hate and bigotry will disappear. That being unlikely, it is still possible and a worthy public policy goal to eliminate violence stemming from the ill will residing in the hearts of some, even after the norms-and values-molding work of the law as symbol has had a chance to work. If common law parameters of mens rea must expand a bit, that would be a small price to pay for a more civil society.

Professor Susan Gellman opposes hate crime definitions that necessarily incorporate motive into intent and offers the following definitional distinctions:

"[I]ntent" refers to the actor’s mental state as it determines culpability based on volition, "purpose" connotes what the actor plans as a result of the conduct, and "motive" is the term for the actor’s underlying, propelling reasons for acting, which may have no direct relationship to the type of conduct chosen.

Her argument is essentially that although both intent and purpose are appropriate elements of an offense, of a crime definition, motive is not, for reasons noted earlier.

She has no problem with the common law’s notion of specific intent or the MPC’s purposeful culpability state, but draws the line at including motive as part of mens rea. Hate crimes as currently defined are thus unacceptable, but this is not the travesty some would claim: acts of violence are already severely punished, regard-less of motive.

Gellman’s detractors might well recall the language of the Pohlot majority, that "notions of intent, purpose and premeditation are malleable and at their margins imprecise," add motive to the mix and conclude that purpose and motive provide an example of a distinction without a difference (Note, 1993). Even if one concedes that they are essentially different, however, it should be noted that motive is already punishable under federal statutory law, albeit civil law in the tort of conspiracy to interfere with civil rights (Note, 1993), and arguably under the extant federal hate crime law based on interference with federally protected activities based on race, religion or national origin.

If one may thus conclude that incorporation of motive into mens rea, a matter hardly to be disputed regarding hate crime definitions, is permissible in modern criminal codes, regardless of any common-law limitations, then one might inquire (good form always in policy analysis) as to whether such hate crime definitions wreak unanticipated negative consequences. One concern, of course, would be the unconscious nature of some bigotry (Jacobs, 1993). Even in this era of political correctness and hyper-sensitivity to the feelings of others, some people are simply not sensitive, and some of them have deeply imbedded racist, anti-Semitic, homophobic or otherwise unpopular assumptions, beliefs and values. If one receives enhanced punishment because his violent actions were motivated by unconscious bigotry, it would make a mockery of the notion of intent (with its concomitant notions of culpability and blameworthiness) as the moral peg upon which criminal sanctions hang. Even worse, perhaps, the state would then become final arbiter of assumptions, beliefs and values and then all would be lost. As Jacobs(1993) notes regarding hate crime laws already on the books, "[t]here is the all too likely possibility that hate crime trials will degenerate into inquisitions on the defendant’s beliefs."

Another problem relates to the practical aspects of law enforcement and prosecutorial decision making. Jacobs (1993) asks "[i]n interracial cases, should the police routinely investigate the defendant’s prejudices?" given the practical on-the-street reality that "in labeling hate crimes there is immense potential for confusion and arbitrariness." Consequently, one well might ask whether we want what amounts to a presumption of hate whenever a majority-minority or Woman-victimization-by-man crime occurs. With advocacy group zeal and media complicity, the inevitable result is what Jacobs (1993) refers to as "the politicization of the criminal justice process" and the further rending of society along the very lines that hate-crime law enforcement was ostensibly designed to heal. The earlier comments by Sullivan (page 9, above) should be noted again.

The author concludes that so long as prosecutors and legislators, even in the face of strong political pressure brought about by single-issue activists, honor Martin Luther King’s distinction between legislating morality and regulating conscious behavior by focusing solely on the latter, civil libertarians need not fret. Yes, motive would be a part of mens rea in the peculiar case of hate crimes, but for valuable public policy reasons. No stampede toward governmental thought police would seem necessarily to follow. Still, it is the wise citizen who remains vigilant.

Conclusion

Hate crimes are indeed an unusual type of crime from the definitional stand-point and do in fact incorporate motive as part of the mens rea. Given that the public policy value choices behind the enactment of such laws are highly defensible and that statutory law is not bound and should not be bound by some blind alleg-iance to the strictures of traditional common-law jurisprudence, such laws are proper if their unintended negative consequences do not outweigh their positive consequences. It is concluded that so long as government remains highly sensitive to the fundamental civil liberties of free speech and thought, the positive conse-quences preponderate, though, as James B. Jacobs noted, "[t]o fragment criminal law into specialized laws recognizing a moral hierarchy of motives and offender/victim configurations will have little, if any, crime-control benefit, while carrying serious risks for race relations and social harmony."

References

Gellman, Susan, "Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence? Constitutional and Policy Dilemmas of Ethnic Intimidation Laws," 39 UCLA Law Review 333, 1991.

Jacobs, James B. "Should Hate be a Crime?" The Public Interest, no. 113, Fall, 1993.

Jenness, Valerie and Kendal Broad, Hate Crimes: New Social Movements and the Politics of Violence. Aldine de Gruyter, 1997.

Kaplan, John, et al. Criminal Law: Cases and Materials (3^rd ed.). Little, Brown, 1996.

Levin, Jack and Jack McDevitt, Hate Crimes: the Rising Tide of Bigotry and Bloodshed. Plenum Press, 1993.

Moenssens, Andre A., et al. Criminal Law (6^th ed.). Foundation Press, 1998.

Note, "In Defense of Hate Crime Laws," Harvard Law Review, Vol. 106, April, 1993.

Pillsbury, Samuel H., "Evil and the Law of Murder," U.C.Davis L. Rev., 1990.

Rosen, Jeffrey, "Bad Thoughts," The New Republic, 1993.

Stinski, Brent F. "Can Hate be Controlled? A Clouded Issue." Human Rights,

Spring, 1993.

Sullivan, Andrew. "What’s so Bad about Hate?" The New York Times Magazine,

September 26, 1999.

Winters, Paul A. (ed.). Hate Crimes. Greenhaven Press, 1996.

                                                              Table of Cases

Midgett v. State, 292 Ark. 278, 729 S.W.2d 410 (1987)

R.A.V. v. City of St. Paul, 505 U.S. 377 (1992)

United States v. Pohlot, 827 F.2d 889 (3d Cir., 1987)