March 15, 2000

Subject:  A.1573/Eve et al. S.1038/Goodman et al.

An act to amend the criminal procedure law, the penal law and the civil rights law, in relation to strengthening civil rights protections and to make bias related violence or intimidation a criminal offense)

Subject: A.9478-A/Ravitz et al. S.4691-A/Goodman et al.

An act to amend the penal law and the executive law, in relation to hate crimes.

Position:  Qualified Support

These bills essentially increase penalties for acts of violence or intimidation that are motivated by the prejudice and bias of the person committing the act with the intent to deprive an individual or group of individuals of the exercise of civil rights. 

The NYCLU supports the enhancement of penalties for criminal offenses when the action has a bias-related motive.  We do caution, however, that in a society that already suffers from a tendency to over-incarcerate, such additional penalties should not be excessive.  To the extent that these bills provide discretion to the sentencing judge, we would hope that our outrage at such crimes would not lead judges to impose excessive penalties under these bills.

The NYCLU does believe that these bills avoid some of the pitfalls that such legislation can sometimes present. The NYCLU cautions that legislation enhancing the penalties for bias related crimes must take into account the due process rights of individuals accused of such crimes. Any enhanced penalty for such offenses should require that the element of discrimination, like each other element of the crime, must be established by proof beyond a reasonable doubt.  The NYCLU supports the approach of these bills in creating separate crimes of bias related violence or intimidation with the defendant’s discriminatory intent as an element of the crime.  

The NYCLU is also concerned that any legislation in this area must be limited to punishing the conduct of intentionally selecting the victim on the basis of invidiously discriminatory conduct, but may not permit enhanced penalties based on the defendant’s constitutionally protected beliefs, opinions, expressions or associations.  Thus, evidence of a defendant’s remarks, beliefs or membership in a group should not be admissible in any prosecution unless such evidence is directly and immediately related to the chain of events leading to the crime.  Each of these bills on its face punishes only the discriminatory conduct described above, but we would caution that, if passed, its implementation must be watched carefully to insure defendants are not subject to enhanced penalties solely on the basis of their beliefs, remarks or associations, however distasteful those may be.

The NYCLU would have preferred to see a bill offering truly comprehensive anti-bias legislation, including pro-active educational programs directed towards countering stereotypes and hatred, the appointment of a special prosecutor for bias related acts and the right for the victim of bias related violence to seek civil remedies.  Alternatively, but not as useful, the legislature should consider the establishment of a bias resource center. This independent agency would provide expert legal assistance on matters involving bias related acts of violence. 

We cannot fully support a bill that gives judges a right to impose stiffer penalties, but which fails to offer remedies to the problem. If these bills were to become law, it could potentially make the future passage of truly comprehensive anti-bias legislation difficult.

The NYCLU takes a position of qualified support on A. 1573/S.1038 and A.9478-A/S.4691-A.

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