22Есаков Геннадий Анатольевич - доктор юридических наук, профессор, заведующий кафедрой уголовного права Национального исследовательского института (Высшая школа экономики); заведующий Лабораторией по изучению проблем противодействия терроризму и экстремизму Юридической школы ДВФУ, г. Владивосток. E-mail: gesakov@gmail. com.
Коробеев Александр Иванович - доктор юридический наук, профессор, заведующий кафедрой уголовного права и криминологии Юридической школы ДВФУ, заслуженный деятель науки РФ, г. Владивосток. E-mail: akorob eev@rambler.ru
ПРЕСТУПЛЕНИЯ НЕНАВИСТИ В АМЕРИКАНСКОМ УГОЛОВНОМ ПРАВЕ
Статья посвящена преступлениям ненависти в американском уголовном праве. Рассматриваются понятия преступлений ненависти; особенности их конструирования в федеральном уголовном законодательстве и законодательстве штатов; конституционные и социально-правовые вопросы, возникающие в связи с ними. Особенность преступлений ненависти как правовой дефиниции заключается в том, что она основана на оценке мотивов совершающего преступления лица, которое руководствуется своим личным внутренним отношением к определенной социальной группе по признаку расы, национальности, пола, религиозной принадлежности. Право США столкнулось с этим видом преступлений задолго до того, как ряд аналогичных составов был введен в УК РФ, соответственно опыт США в криминализации преступлений ненависти и сложившаяся судебная практика представляют определенный интерес для российского законодателя. В связи с этим авторы статьи рассматривают преступления ненависти в проекции законодательства США, законодательства ряда штатов, отличающихся наиболее обширной практикой применения этого раздела уголовного права, а также ряд прецедентов, оказавших максимальное влияние на развитие изучаемых составов преступления. В том числе проанализированы уголовные законы штатов Калифорния, Вирджиния, Висконсин, Вермонт, Северная Каролина, Нью-Йорк, прецеденты по делам
Wisconsin v. Mitchell, R.A.V. v. St. Paul, UnitedStates v. Maybee, Virginia v. Black, политические реакции органов власти на принятые судебные решения, мнения ученых. Проведены параллели с Конституцией США, изучено соотношение преступлений ненависти и основополагающих конституционных прав человека, в том числе права на свободу слова. Рассмотрение преступлений ненависти проведено по трем направлениям: преступления ненависти как насильственные действия, продиктованные экстремистскими мотивами ненависти и предубеждения против определенных социальных признаков потерпевшего, »символические» преступления ненависти, при которых оскорбление и унижение причиняется использованием символа с экстремистским значением и преступление ненависти как выражение внутреннего убеждения человека, его этических и моральных категорий. Особое внимание уделено разграничению последнего явления без совершения преступных действий и мотива совершения преступления, а также их влияние на определение виновности и наказуемости деяния, а также на степень суровости наказания, увеличения его пределов. С учетом актуальности полученных выводов для уголовного права любого государства, в статье проводятся параллели с российским уголовным правом в контексте борьбы с экстремистскими преступлениями.
Ключевые слова: ненависть, преступление, преступления мотивации, свобода слова, ксенофобии.
Gennadiy A. Esakov, Doctor of Legal Sciences, Professor, The Chair of the Criminal Law Department of the National Research Institute, the Higher School of Economics, Moscow;
the Chair the Research Laboratory on the Problems of Counteraction to Terrorism and Extremism, School of Law, Far Eastern Federal University, Vladivostok. E-mail: gesakov@gmail.com.
Alexandr I. Korobeev, Doctor of Legal Sciences, Professor, The Honored Scientist of RF, the Chair of Criminal Law and the Criminology Department, School of Law, Far Eastern Federal University, Vladivostok. E-mail: akorob eev@rambler.ru.
HATE CRIMES IN AMERICAN CRIMINAL LAW
The article observes the hate crimes definition in U.S. criminal law. The following issues are analyzed: the definition of "hate crimes"; the construction features of federal criminal legislation and state legislation; constitutional, social and legal issues associated with them. The main problem of hate crimes in legal definition is related to the measurement of motivation the person was guided by when committing a hate crime -The U.S. law had faced hate crimes far longer than the same criminal constructions were included into the Russian Criminal Code, that's why the U.S. experience in hate crime criminalizing process and the precedent system may be useful for Russian legislators. Therefore, the authors analyze the place of hate crimes in U.S. federal criminal law, the law of states that have the most extensive prosecuting experience in that field, and the precedents that significantly influenced the evolution of hate crime legal constructions. Among these sources are the criminal codes and acts of such states as California, Wisconsin, Virginia, Vermont, North Carolina, New York, as well as the cases of Wisconsin v. Mitchell, R.A.V. v. St. Paul, United States v. Maybee, Virginia v. Black, and the official political opinions and legal articles. The parallels with the U.S. Constitution are made, and the relationship between hate crimes prohibition and the basic constitutional human rights, such as the freedom of speech, are analyzed. Hate crimes analyses are framed through three main points of view: the hate crimes as assaults motivated by extremists ideas of hatred and prejudice against some social characteristics of the victim; the "symbolic" hate crimes, enacted through insult and humiliation with the usage of a negatively perceived symbol; and the hate crimes initiated as an attack on expression of personal beliefs, ethics and moral ideas. The differences between the last one and the criminal motivation are emphasized, also theirs influence on the definitions of guiltiness, penalties, and the level of sentences enlargement are shown. The conclusions which are relevant to any criminal law the article also discuss the related points with Russian Criminal law in the extremists crime prevention field.
Key words: hate, crime, crime motivation, freedom of speech, xenophobia.
The rate of social progress changes in the society is quite amazing: for example, in the USA, only 150 years ago, such a thing as like slavery existed. Just over a little more than half a century ago, almost everywhere, people were separated on the basis of»white" and»black", "colored and dogs," and nowadays, the subject is so sensitive that the ideology of equality sometimes turns even acceptably common words in a dangerous crime. It is about the so-called» hate crimes"1 and their origins in the U.S. Criminal law. The experience of U.S. legislators in the field of these crimes can be useful to the Russian experience (it is at least premature to speak about any benefits of this, because of the differences in legal systems), when over the course of several years, the legislators and jurisprudence have been searching for the best ways to respond to acts committed with political, ideological, racial, ethnic or religious enmity or because of the motives of hatred and prejudice towards any social group (aggravating circumstances in several criminal formulations in the Special Part of the Russian Criminal Code) or in any reasons associated with such hatred or enmity (criminal law articles that use the last one as a base of
1That term is common in U.S. legal practice and is now used as the official definition of such crimes.
theirs constructions). To give an overview of hate crimes in the US Criminal law, we will provide as an overview, first, the definition of hate crimes; secondly, the construction features of federal criminal legislation and state legislation, and lastly,, constitutional, social and legal issues associated with them.
1. Hate crimes definition. According to the federal character of American Criminal Law, i there is no general definition of hate crimes in the legal system . However, some common features of that definition can be distinguished.
First of all, it is correctly pointed out in the legal sources that the definition itself isn't precise: that crimes are linked not to hatred but to prejudice (although both terms are connected to each other) [1]. In that case, the legislator distinguishes (speaking generally) the special motives of committing the crime and evaluates the seriousness of the crime from the offense to the motivation, can increases the penalty verdict. But the concept " prejudice" remains vague. The common legal example, easily found in the sources, depicts prejudice in the following scenario: would it be a hate crime if a Caucasian elderly married couple is robbed when the robber committing this crime assumes that they are likely rich and would hardly resist the offense? That is why there is the tendency to divide prejudice offences into two groups: in the first one (like in the previous example), the offender chooses the victim on the discrimination bases but, without any personal hatred of the individual (discriminatory selection model), in the second which is an authentic hate crime), the victim is chosen because of the prejudice feelings to any kind of groups the victim belongs to (racial animus model) [2]. Even so, in the different state legal systems, crimes from both groups can be considered as a hate crimes.
The econd point is that the committed crime must be causally related to the hatred (prejudice). But the tightness of these causal relations ( is the crime fully caused by this motive or only partly?) is the main subject of the discussions [3]. The existing concept of the causal relations is based on the test "but for": the offender should deliberately choose the victim because of the victim's real or supposedly inherent characteristics. However, it seems difficult to use all these tests for the recognizing the subjective motivation of the offender.
Another point is that hatred (prejudice) relates to certain factors. These factors include race and ethnicity, skin color; in the most of the states, religion is accepted as one sexual orientation and any other social characteristics of the person are also suggested as hate factors in recent years. But how wide open should the criminal law be in that sense ? In fact, the problem remains unsolved nowadays and the state-to-state legislation is quite different (for example, in Vermont, the crime motivated by the victims belonging to the US armed forces is labeled as a hate crime [Pub.L. 1455 of the State Criminal Code]). Respectively, "the legal borders of the hate crimes are fixed more by the political decision then by the logic or the legal basics" [4].
And last, could hate-based demonstrations be criminalized themselves as hate crimes -the offences which are motivated by the hate (prejudice), and as hate crimes - orations? The main practical problem with the orientation justification is difficult, since US constitutional legalization respects the 1st Amendment to the U.S. Constitution, which abides the freedom of speech. The intermediate position between them belongs to the "symbolic" hate crimes (for example, a burning Christening cross or the usage of Nazi symbols), which are the combination of speech (oration) and act that mixe together to form a message to the society.
2. The construction of hate crimes in the federal criminal legislation and in the state legislation. Prevailing distinction in the federal and state criminal jurisdiction suggests that the prosecution is a state-initiated objective; the federal prosecution is strictly bordered and states are
2
2In federal legislation that definition of hate crimes can be found "a crime in which the defendant intentionally selects a victim, or in the case of a property crime, the property that is the object of the crime, because of the actual or perceived race, color, religion, national origin, ethnicity, gender, disability, or sexual orientation of any person" (SEC. 280003.Violent Crime Control and Law Enforcement Act of 1994).
against any of its expansion. This can be noticed in the recent years, especially in the hate crimes field.
First steps towards the federal hate crimes construction can be traced back to the 1960s, when on the political and social activity for the racial equality, U.S. Congress passed the legislation on human rights, which included, among others, the criminal acts. In particular, in 1968, the Pub. L. 254(b)(2) of the Federal Criminal Code was passed. By the article "Federally protected activities" include: the force or threat of force to willfully injure, intimidate or interfere with, or attempts to injure, intimidate or interfere with any person because of his race, color, religion or national origin. However, the guidelines in the law used as the sine qua non for a social activity where the offense committed outline the following: the hate crime will only be a crime if committed because the victim is or has been enrolling in or attending any public school or public college, participating in or enjoying any benefit, service, privilege, program, facility or activity provided or administered by any State or subdivision thereof and so on. This chapter also consider as a crime to injure, intimidate or interfere with any person who promotes the rights of another person. The penalty is a monetary fine or (and) imprisonment for no more than one year. If such acts include any of the side effects described in the law, the imprisonment may be prolonged for no more than ten years or for any term of years or for life, or both, or may be sentenced to death if the crime act caused the death4. However, the federal prosecution is possible only after the written order of the U.S. General Attorney (or any other person specially mentioned in the law) and only when the U.S. prosecution would be justified by the public interests or would be necessary for the justice; in any other cases the state prosecution is ensuring.
The Pub. L. includes in Chapter 13 "the Civil Rights," which provide liability for the conspiracy against rights, deprivation of rights under color of law, exclusion of jurors on account of race or color, discrimination against person wearing a uniform of armed forces, deprivation of relief benefits, damage to religious property; obstruction of persons in the free exercise of religious beliefs and so on.
On the 28th of October, 2008, the U.S. President Barack Obama signed an act which was introduced in Congress in 2001, and which is the cornerstone for present federal prosecution of hate crimes5 [5]. It is called "The Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act," and is named in the memory of the two victims in Wyoming and Texas who were murdered in 1998 because of hate-based motivations. In the both cases, the murderers were caught and punished with life sentences (two in Texas received the death penalty)6, but the publicity diverted its attention to the federal legislators The Act opens (§ 4702) with the position of Congress calling the harm caused by hate crimes as "a serious national problem"; Congress also confirms the responsibility of state and local authorities to prosecute the overwhelming majority of violent hate crimes, which will be more effective with greater Federal assistance. For
n
determining the potential significance of the act in the context of the constitution [6], federal
"3
The symbolic name of the USC, title 18, part 1.
4Also the death penalty may be sentenced when results from the acts committed in violation of this section or if such acts include kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill.
5The long process of signification was accompanied by the critics of the idea of the federalization this field of Criminal law. The mentioned that a) states are successful with these crimes prevention by themselves, b) federal prosecution has had enough resources yet, c) there are some procedural difficulties on the federal level which doesn't exist on the state's.
6But the legislation against hate crimes wasn't used there, in the first crime the victim was gay and homosexual people weren't meant like the hate crime victims in the legislation system, in Texas there was no such legislation at all.
n
According to the U.S. Constitution the main value of prosecution competences belongs to the states which ids strictly provides by the Xth Amendment to the U.S. Constitution in
legislators use the link to the Par. 1, Chapter 8, of U.S. Constitution about the "merchandise between the states," which is significantly affected by these crimes. Sec. 4704 consists articles about the support (including financial) for criminal investigations and prosecutions by State, Local, and Tribal Law enforcement officials, which is provided only by federal order.
The most important legal article of the Act is in the Sec. 4707, which is complemented Federal Criminal Code Pub. L. 249 "Hate crime acts". This Paragraph includes two separate offenses which are similar in their constructions. The first (Pub. L. 249 (a) (I)) provides liability for whoever, whether or not acting under color of law, willfully causes bodily injury to any person or, through the use of fire, a firearm, a dangerous weapon, or an explosive or incendiary device, attempts to cause bodily injury to any person, because of the actual or perceived race, color, religion, or national origin of any person. The second (Pub. L. 249 (a) (II)) provides as a reason for hatred the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person. The second construction is constructed in the scope of the federal nature of US: the federal legislator is empowered to prosecute the acts under race, nation, religion and any other origin of a person through the 13 th, 14th, and 15thAmendments to the U.S. Constitution when the federal prosecution in the second example is possible only with the additional acts from the Pub. L. 249 (a) (II) (B) and Pub. L. 249 (a) (IIi) have taken place (such as crimes including the state borders crossing or merchandizing between states, or in the sphere of special maritime or trade U.S. jurisdiction). In the both examples, the Act specifies as penalty imprisonment of no more than 10 years, a fine, or, when the crime results in death or kidnapping or an attempt to kidnap, aggravated sexual abuse or an attempt to commit aggravated sexual abuse, or an attempt to kill the penalty is imprisonment for any term of years or for life, fined in accordance with this title, or both. According to the Pub. L. 249 (b) the federal prosecution is possible only after the General Attorney's certification of one of the four facts: the state doesn't have the jurisdiction on the act; the state asks the federal government about the jurisdiction; the state's verdict or the judgment is significantly unsatisfactory to the federal interests in hate crime prevention; and when the federal prosecution clashes with public interests Limitation period for these crimes is 7 years, but there is no time-limit in the death penalty verdicts (Pub. L. 249 (d)).
Paragraph 4710 of the Act includes detailed declarations of individual freedoms that link it with the First Amendment. In particular, the general definition of the act is that nothing in this division, or an amendment made by this division, shall be construed or applied in a manner that infringes any rights under the First Amendment to the Constitution of the United States nor shall anything in this division, or an amendment made by this division, be construed or applied in a manner that substantially burdens a person's exercise of religion (regardless of whether compelled by, or central to, a system of religious belief), speech, expression, or association, unless the Government demonstrates that application of the burden to the person is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest, if such exercise of religion, speech, expression, or association
1791,"powers not granted to the United States were reserved to the States or to the people. It added nothing to the instrument as originally ratified". Federal government according to the strict declaration in Constitution and the remark about "necessary and appropriate" power has the authority to limited legislation. The most widely annotated declaration for explanation of the federal competence is included in p. 3 ch. 8 t. I of the Constitution according to which Congress have powers to control and regulate the mercenary between the states ant tribes. According to the remarks about "necessary and appropriate" powers Congress in powered to public all laws that will be necessary and appropriate for implementing as mentioned rights as all another rights which the U.S. Government is powered by the U.S. Constitution. This situation when the brunt of the responsibility is on the states definitely reflects on the decisions of the U.S. Supreme Court: "It is certain that crime prevention and prosecution is mostly the states duty than the federals".
was not intended to plan or prepare for an act of physical violence; or incite an imminent act of physical violence against another. The interesting declaration consist the paragraph 4710(4), according to which nothing in this act "shall be construed to allow prosecution based solely upon an individual's expression of racial, religious, political, or other beliefs or solely upon an individual's membership in a group advocating or espousing such beliefs".
From the moment the act became significant part of legislation, the U.S. Government has used it several times for hate crime prosecution. For instance, in 2010, a group of people insulted several Mexican people at a gasoline station. After the latter group left the station, the former group that threw insults decided to follow them. This group eventually caught up with the Mexican individuals and made dangerous maneuvers that caused loss of control in the driver of the group's car. The car skidded off the road and crashed, and the driver and his passengers were injured. The accusation of a hate crime was based on the Pub. L. 249 (a) (I), finding one of the offenders guilty and sentenced to 135 months in prison. The second offender pleaded guilty and the third had the immunity of giving the testimony. The defense applied the constitutionality of the Act of 2009, because it encroached the state competences and evoked the capabilities of the U.S. Congress as more applicable than the Second Amendment. The court declined this statement and referred to the previous precedents line, which confirmed the constitutionality of the Pub. L 245 of U.S. Criminal Code, and made analogue with its declaration. Other arguments (about the absence of hate attributes and so on) were declined by the court as well, attesting to the legitimacy of the accusation.
On the state level, (there is comparable anti-hate crimes legislation in almost all the states in the country) the legislators use two main ways of creating such laws.
One of them is based on the creation of special constructions of hate crimes. The number of the constructions (or act chapters) and their specifications are different from state to state. The laconic example is the Criminal Code of North Carolina. According to the par. 14-401.14 of this Code, it is prohibited to engage in a) ethnic intimidation ( assault of another person, property damage or destruction, or threat of such actions because of the actual or perceived religion, national origin, gender, sexual orientation, gender identity, or disability of any person; I class misdemeanor) and training the assault methods (I class misdemeanor). The burning of Christian crosses is also considered a symbolical hate crime (§14-12.12; which is a racist crime in Southern states) and some other assaulted actions (§14-12.13, 14-12.14).
The Criminal law of California is more detailed. The chapter 11.6 in the Code is titled "Civil rights" and defines special constructions and identifications of hate crimes. According to the § 422.55(a) of the Code, "hate crime" means a criminal act committed, in whole or in part, because of one or more of the following be it actual or perceived characteristics of the victim: (1) disability; (2) gender; (3) nationality; (4) race or ethnicity; (5) religion; (6) sexual orientation; (7) association with a person or group with one or more of these actual or perceived characteristics. The § 422.56 details this definition.
The general construction of hate grime is given in § 422.6(a) (b) as follows: "no person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55; (b) no person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.". As a penalty, the article calls for imprisonment in a county jail for no more than one year, or a fine not to exceed five thousand dollars ($5,000), or by both imprisonment and fine or alternative penalties. California Criminal Code specially defines that
an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision (§ 422.5(d), 422.8).
The North Dakota Criminal Code (12.1-14-04, 12.1-14-05) defines as a hate crime discrimination in public places whether or not acting under law, by force, or threat of force, or by economic coercion; intentionally injuring, intimidating, or interfering with another because of his sex, race, color, religion, or national origin and because he is or has been exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.
The second constriction suggests creating special rules for penalty: the legislator doesn't create the special criminal construction but can increase the punishment.
The typical example of this is the criminal law of New York. State Criminal Code 0f 2000 was completed with a special chapter 485 entitled "Hate crimes". It starts with S. 485.00, which can be annotated as a summary of the articles to show the legislator's opinion about hate crimes and the interpretation on how best to strengthen the prosecution of these crimes
S. 485.05(1) of the Code defines hate crimes as the following: "a person commits a hate crime when he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct". The S. 485.05(2) should be specially observed, because according to it, proof of race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of the defendant, the victim or of both the defendant and the victim does not, by itself, constitute legally sufficient evidence satisfying hate crimes. S. 485.05(3) includes the list of these crimes for S. 485.05(1), which consists of more than 50 crimes such as assault, robbery, murder in the first and second degree, stalking.
The reasons for penalty tightening is defined in the S. 485.10. According to it, if an offender commits an offense is specified as a misdemeanor or a class C, D or E felony, and the crime is hate-based, the hate crime shall be deemed to be one category higher than the specified offense the defendant committed ( influenced by the penalty, the punishment conditions and the releasing process). If the offense is specified as a class B felony, it's tightens the imprisonment; when a person is convicted of a hate crime, the the specified offense is deemed a class A-1 felony, and the minimum period of the indeterminate sentence shall be not less than twenty years. In addition to any of the dispositions, the court mayrequire as part of the sentence imposed upon a person convicted of a hate crime pursuant to this article, that the defendant complete a program, training session or counseling session directed at hate crime prevention and education (S. 485.10(5)).
In Pennsylvania (which was among the first states that signed the anti-hate crimes legislation in 1982), the rule about penalty tightening is fixed in P. 2710 in state's Criminal Code "Ethnic intimidation". According to it, an offense under this section shall be classified one degree higher in the classification specified in section 106 (relating to classes of offenses) than the classification of the other offense if it is committed because of perceived race, color, religion, national origin, ancestry, mental or physical disability, sexual orientation, gender or gender identity of another individual or group of individuals.
In recent years, an increasing number of states use the third - combined - way of mixing the two ways of offense and penalty definition of hate crimes (like in California, where along with the special hate crime definitions there are special rules about the penalty tightening in excluding cases [422.7 of California Criminal Code]) or in the laws of North Carolina pertaining to misdemeanors (14-3(c)).
3. Constitutional, social and legal issues associated with hate crimes. There is no doubt that, being very close with oratories, hate crimes became the subject of litigations especially it the context of First Amendment which includes, among others, the thesis "Congress shall make no law ... abridging the freedom of speech, or of the press".
At the beginning of the hate crimes legitimating process in the states' legal systems, these crimes drew the attention, among others, of the U.S. Supreme Court lawyers. First significant case (involving Minnesota legislation) was solved in 1992 [8]. In the summer of 1990, a group of teenagers assembled a crudely made cross by taping together broken chair legs, and burnt it on the yard of an African-American family. The offender was brought to the court under the law statute "Whoever places on public or private property, a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, 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 commits disorderly conduct and shall be guilty of a misdemeanor". Appellation to U.S. Supreme Court based on the First Amendment was satisfied. Agreeing that that the freedom of speech can be limited, the Court emphasized that there is exceptionality to such incidents. The Court suggested the debatable thesis as limiting the content of oratorio and concluded that "Displays 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. The First Amendment does not permit St. Paul to impose special prohibitions on those speakers who express views on disfavored subjects"[9]. The Court concluded that the burning of a cross in someone's front yard is reprehensible and cannot account for the freedom of speech related in the constitution under different terms. The Court's opinion was perceived ambiguously. In particular, the criticisms of its conclusions mentioned that the judges didn't ask "whether, and under what circumstances, words such as»nigger" and symbols such as burning crosses cease to be part of the freedom of speech protected by the First and Fourteenth Amendments, and instead constitute badges of servitude that may be prohibited under the Thirteenth and Fourteenth Amendments" [10]. Discussions about the constitutionality of hate crimes themselves according to that decision were popular and increased the interest in the subject [11]. One of those positions (which was accepted by the Supreme Court later in 1993) was about delimiting hate crimes and crimes with hate speeches [12]; in the context of the first, it was remarked that the First Amendment prohibited the punishment of expressed thoughts, but that it did not limit the punishment of motivation [13].
One year later, the Supreme Court took a chance to clear its position in another trial [14], where the state court used the precedent of the 1992 trial and declared as unconstitutional the law which prosecuted the hate crimes [14]. A group of African American individuals motivated by racial hatred, attacked a white teenager and beat him. Mitchell, one of the teenagers, was convicted of aggravated battery; the sentence should have not exceeded more than a 2 year imprisonment, but because Mitchell had selected his target based on race, his maximum sentence was raised to 4 years of imprisonment. The court distinguished their opinion on this matter from antidiscrimination laws which had already been ruled constitutional, claiming that the law in question for this particular case punished the»subjective mental process" of victim selection, whereas the antidiscrimination laws upheld previously had punished»objective acts of discrimination". The U.S. Supreme Court reversed the Wisconsin Supreme Court's decision. The U.S. Supreme Court responded that ".... although the statute punishes criminal conduct, it enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all. Because the only reason for the enhancement is the defendant's discriminatory motive for selecting his victim, Mitchell argues (and the Wisconsin Supreme Court held) that the statute violates the First Amendment by punishing offenders' bigoted beliefs."[16]. Rejecting this hypothesis, the U.S. Supreme Court emphasized that'the Constitution does not erect a per se barrier to the admission
of evidence concerning one's beliefs and associations at sentencing simply because those beliefs and associations are protected by the First Amendment" (except abstract beliefs that are not connected to the concrete act) [17]. The Court suggested that the difference between 1992 precedent where the legislator punished the symbol, oratorio and this case, in the last one it was used only for raising the sentence because his motivation was considered more serious and this is constitutional [18].
The decision was perceived positively ("the decision is a good sign: states initiatives about fighting and coping the crimes caused by hatred may find valuable constitutional reasons") [19], but there was another side to the story - a very different opinion compared to the 1992 decision that evoked many questions about the differences between hate speech, symbolic hate crimes (criminalization of which is, suggestively, broke the Constitution) and hate crimes -hatred motivated offences (what is the opposite) [20].
In 2003, U.S. Supreme Court went back to the problem of how constitutional is the prosecution of the symbolic hate crimes [21], answering (or trying to do this) the questions raised in 1992. In Virginia, three defendants were convicted in two separate cases of violating a Virginia statute against cross burning. The statute defined that "for any person..., with the intent of intimidating any person or group..., to burn... a cross on the property of another, a highway or other public place" and made it a 6 class felony, specifies that»any such burning... shall be prima facie evidence of an intent to intimidate a person or group". Referring to the precedent of1992, Virginia Supreme Court found the law unconstitutional as it limited the freedom of speech. But the U.S. Supreme Court didn't support this decision. Analyzing the extend of the history of cross-burning symbolism, founded in Scotland in the 14th century for communication with Highlands clans, the Court emphasized the difference between this cultural usage of the burning cross and the meaning of that symbolism in USA. In America, the burning of the cross is inextricably intertwined with the history of the Ku Klux Klanand as a tool of intimidation and a threat of impending violence. Analyzing the 1992 precedent, the Court also specially stressed the fact of non-absolute nature of freedom of speech, giving legislators the powers to limit this right. Unlike Minnesota's unconstitutional law, which restricted the freedom of private opinion (in other words, narrowed the speech content), Virginia legislators almost constitutionally punished the actions, intended to create a pervasive fear in victims that they are a target of violence (or in other words, the method of expression this content). "The First Amendment permits Virginia to outlaw cross burnings with the intent to intimidate, since burning a cross is a particularly virulent form of intimidation. Instead of prohibiting all intimidating messages, Virginia may choose to regulate this subset of intimidating messages in light of cross burning's long and pernicious history as a symbol of impending violence. A ban on cross burning carried out with the intent to intimidate is fully consistent with this Court's holding in R. A. V., a particular type of content discrimination does not violate the First Amendment" [22]. The Court did, however, strike down the provision in Virginia's statute about prima facie evidence as unconstitutional [23].
In different scientific articles, this precedent was suggested as facilitating the state's power to prosecute massages, which are definitely intimidating the minorities [24]. But it also
o
should be stated that, in fact, this decision is private and needs legal evaluation [25] in further line ad hoc precedents about hate crimes constitutionality.
Those are the reasons why constitutional and legal aspects of hate crimes are still uncertain. Three basic precedents of the U.S. Supreme Court both certainly orientate (questions about raising the sentence of hate motivated offences) and leave some problems unsolved (what are the borders of limiting the freedom of speech in hate-based cases, and how can these actions and oratories be divided).
That uncertainty coincides with socio-legal discussions that follow the existence and expansion of hate crimes.. Discussion in publications is sometimes very deep and emotional, that
o
8As it was mentioned in one commentary to the precedent "it only starts the practice, bordered intimidating kinds of oratories and symbolic actions".
it touches on the philosophical basis of criminal law as well as the sociological and psychological aspects of humanity. Although there is no space for a detailed observation of these aspects, we can provide a few examples of pro and contra opinions.
In particular, one of the opinions against hate crimes can be reduced to the remarks that the legislator, paying more attention to sentences for criminal motivation, moves the accents from the traditional crime grading: "...criminalizing hatred and prejudice means moving from act-orientated theory of crime penalty to subjective-orientated theory, what means moving from liberal theory of legislation to the perfectionism" [26]. But it is also justified that ".punishes the offenders for hatred or prejudice to theirs victims.the hate (prejudice) crimes indeed punishes the offenders for bad behavior. In fact these enlarged sentences punish the offenders only for bad behavior" [27]. This hypothesis allows for making clear conclusion for all criminal law: can the offender be freed from his (her) prejudiced beliefs or are his orher beliefs static and doesdoes it excuse the increased penalty for his/her actions?[28]" And, does the legislator have potential to regulate virtue and vice of citizens beliefs by the powers of criminal law?[29]
Some articles also note that "the tendency of sentences enlargement for so called "hate crimes" ... marks the raise of political influence of those groups that previously weren't powerful enough..."[30]. The raise of influence of such groups, obstruction of theirs way of life and behavior to others polarize the society and that hardly can be suggest as positive consequence of hate crime legal acts applying process [31].
The authors, who recognize the existence of hate crimes, usually evoke the high rate of danger of such crimes and the high rate of moral guilty of the offenders: "an assault motivated by hatred and simple assault causes an almost equal physical violation .to the victim. But the hate crime violation to the victims autonomy (means the victim's sense of life control) and dignity is higher than those caused by the simple assault. It is clear from the most often examples of depression, panic attacks, sense of helplessness and isolation that hate crime victims can be diagnosed..."[32]. Consequently, because hate crimes are more dangerous than crimes without the motive of hatred and prejudice, they intrinsically necessitate an increased penalty sentence"[33].
Given these examples, it is easy to apprehend the reasons why hate crimes are the most discussed socio-legal phenomena in recent U.S. criminal law. From the US experiences, certain conclusions can be made for the Russian Federation. Extremists crimes, which are included in Russian Criminal Code as a special features of several crime constructions in General part of Criminal Code or as an actions sui generis, generate more problems than solutions. They are usually committed by some kind of motivation (like ideological or religious hatred or enmity against some social groups), and by legally correcting the definition of criminal motivation mechanisms that outline criminal behavior, we can further raise unavoidable questions about constitutionality of legal practice and elevate the discourse about the freedom of speech in the Constitution of Russian Federation [40]. That is exactly why some of the solutions from U.S. legal practice can be very useful for Russia.
REFERENCE
1. Jacobs J. B., Potter K. A. Hate Crimes: A Critical Perspective // Crime and Justice. 1997. Vol. 22. P. 2; McPhail B. A. Hating Hate: Policy Implications of Hate Crime Legislation // Social Service Review. 2000. Vol. 74. P. 637-638.
2. Lawrence F. M. The Punishment of Hate: Toward a Normative Theory of Bias-Motivated Crimes // Michigan Law Review. 1994. Vol. 93. P. 326-340.
3. Jacobs J. B., Potter K. A. Op. cit. P. 4-5; Phillips S., Grattet R. Judicial Rhetoric, Meaning-Making, and the Institutionalization of Hate Crime Law // Law & Society Review. 2000. Vol. 34. P. 581-582.
4. Jacobs J. B., Potter K. A. Op. cit. P. 3.
5. Chorba C. The Danger of Federalizing Hate Crimes: Congressional Misconceptions and the Unintended Consequences of the Hate Crimes Prevention Act // Virginia Law Review. 2001. Vol. 87. P. 319-379/
6. Patterson v. New York, 432 U.S. 197, 201 (1977)
7. United States v. Maybee, 687 F.3d 1026 (8th Cir. 2012).
8. R.A.V. v. St. Paul, 505 U.S. 377 (1992).
9. Ibid. at p. 391.
10. Amar A. R. The Case of the Missing Amendments: R.A.V. v. City of St. Paul // Harvard Law Review. 1992. Vol. 106. P. 126.
11. Grannis E. J. Fighting Words and Fighting Freestyle: The Constitutionality of Pe-nalty Enhancement for Bias Crimes // Columbia Law Review. 1993. Vol. 93. P. 178-230.
12. Hate Is Not Speech: A Constitutional Defense of Penalty Enhancement for Hate Crimes // Harvard Law Review. 1993. Vol. 106. P. 1317-1319.
13. Ibid. P. 1329.
14. Wisconsin v. Mitchell, 508 U.S. 476 (1993).
15. State v. Mitchell, 169 Wis.2d 153 (1992).
16. Wisconsin v. Mitchell, 508 U.S. 476, 485 (1993).
17. Ibid. at p. 486.
18. Ibid. at p. 487-490.
19. The Supreme Court. 1992 Term // Harvard Law Review. 1993. Vol. 107. P. 238.
20. Ibid. P. 238-243.
21. Virginia v. Black, 538 U.S. 343 (1993).
22. Ibid. at p. 363.
23. Ibid. at p. 363-367.
24. Ernst A. R. Virginia v. Black, 123 S. Ct. 1536 (2003) // Washington and Lee Journal of Civil Rights and Social Justice. 2004. Vol. 10. P. 139-140.
25. Petraro N. Harmful Speech and True Threats: Virginia v. Black and the First Amendment in an Age of Terrorism // St. John's Journal of Legal Commentary. 2006. Vol. 20. P. 533
26. Hurd H. M. Why Liberals Should Hate "Hate Crime Legislation" // Law and Philosophy. 2001. Vol. 20.P. 216.
27. Ibid. P. 224.
28. Ibid. P. 224-226.
29. Ibid. P. 229-232.
30. Criminology / ed. J. F. Shelly.SPb., 2003. P. 95.
31. JacobsJ. B., PotterK. A. Op. cit. P. 42.
32. LawrenceF. M. Op. cit. P. 367.
33. Ibid. P. 368.
34. Korobeev A. Extremism as a Forerunner of Terrorism in Contemporary Russia // The Basic situation and Strategy of the International Fight Against Terrorism in Post-Biu Laden Era. Beijing, 2012. P. 303-311.
