![handle is hein.crs/crsajst0001 and id is 1 raw text is: Order Code RS22812
February 20, 2008
Constitutional Limits
on Hate Crime Legislation
Alison M. Smith
Legislative Attorney
American Law Division
Summary
Federal and state legislators recognize the special concerns and effects of hate
crimes. Although there is some federal legislation in place, many states have enacted
some form of ethnic intimidation law or bias-motivated sentence-enhancement factors
in attempts to curtail hate crimes. Several United States Supreme Court cases provide
the framework in which states must legislate to ensure the constitutionality of hate crime
legislation. After these landmark cases, the real questions for states involve identifying
permissible ways to curtail hate crimes without infringing on any constitutionally
protected rights. On the federal level, in light of U.S. Supreme Court cases, the question
remains as to what extent Congress can broaden the classes of individuals subject to hate
crime legislation. This report discusses constitutional considerations facing both
individual states and Congress in enacting hate crime legislation. It will be updated as
events warrant.
Introduction.' Concerns about hate crimes have become increasingly prominent
among policymakers at all levels of government in recent years. A hate crime is defined
as [a] criminal offense against a person or property motivated in whole or in part by the
offender's bias against a race, religion, disability, ethnic/national origin, or sexual
orientation.2 Congress has recognized the special concerns and effects of hate crimes by
enacting several laws such as the Civil Rights Act of 1968,3 the Hate Crimes Statistics Act
of 1990,4 and the Hate Crimes Sentencing Enhancement Act of 1994.' Current federal
1 This report was originally prepared by the late Paul Starett Wallace Jr., Specialist in American
Public Law, American Law Division.
2 28 U.S.C. § 524.
3 Codified in part at 18 U.S.C. §245 (defining federally protected activities).
4 28 U.S.C. §534. This act requires the Justice Department to acquire data on hate crimes.
5 Codified in part at 28 U.S.C. §994 (directing the United States Sentencing Commission to
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