Amicus Curiae Brief — Apprendi v. New Jersey

Supreme Court, U.S,

w,

No. 99-0478

In The

SUPREME COURT OF THE UNITED STATES

CHARLES APPRENDI, JR..,

Petitioner,

Vv.

THE STATE OF NEW JERSEY,

Respondents.

On Writ of Certiorari to the

Supreme Court of New Jersey

BRIEF AMICUS CURIAE OF THE RUTHERFORD

INSTITUTE IN SUPPORT OF PETITIONER

John W. Whitehead

Steven H. Aden

THE RUTHERFORD INSTITUTE

1445 East Rio Road

Charlottesville, Virginia

22901

(804) 978-3888

soomaey 13, 2000

QUESTION PRESENTED FOR REVIEW

to notice by

44-3e, unconstitutionally provides

increasing the

law, N.J.S.A. 2C

and trial by jury.

Whether this Court should decline the invitation of the

New Jersey Supreme Court to decide whether New Jersey’s

al

crime

for an extended term of

possible penalty by ten years, based on proof by a

preponderance of the evidence, rather than proof beyond a

reasonable doubt, and denies the defendant ri

hate

OF RT PRE Fy LEE PO, ~

¥

-iii-

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW.....0.........cccc00s ii

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l. STATEMENT OF AMICUS CURIAE INTEREST AND

PU OUI ey CU tececacescsssssnsanesersszececnesenssssesnenemansssumentonanens 2

Il. SUMMARY OF ARGUMENT... ccccccccsesseeeseesneeneneees 3

Bae CEES ceccezessnessnpensncerenecsnenecenevecesnecensnnsnsusevemenipiett 3

1. The New Jersey Hate Crime Law, N.J.S.A. § 2C:44-3e,

Contravenes Federal Constitutional Due Process Under the

Fifth and Sixth Amendments by Permitting Courts to Effectively

Double Applicable Terms of Imprisonment Upon a Finding that

the Defendant “More Likely than Not” Possessed the Requisite

NN NUE cnncticnnsenscntennmnnnenitennnnerninmannninaned 4

2. The New Jersey Hate Crime Law, N.J.S.A. § 2C:44-3e,

Contravenes Federal Constitutional Due Process Under the

Fifth and Sixth Amendments by Depriving Defendants of the

Benefit of a Jury of Peers and Proof Beyond a Reasonable

Doubt of Criminal Intent that is Subject to the Severest Possible

Societal Stigma and Disapprobation........................ccseeeseeeeeee 9

Cee Gee rezscnensensnsescsmnnssepercicerenseussennstemnemenssssemnenatints 12

-iv-

TABLE OF AUTHORITIES

Case

Almendarez-Torres v. United States, 523 U.S. 224 (1998)

nnn dnedeedtadss ke cecbbnaesantuuiee 3, 6,9, 10, 11

Arkansas Educational Television Comm'n. v. Forbes, §23 U.S.

SP OEED ndvcee Cuvekeckedemtinnd iets 2

Davis v. United States, 160 U.S. 469 (1895)

ve nbochikwod ends be hbbee bus keen bbleds cate teanel 7

District of Columbia v. Clawans, 300 U.S. 617 (1937)

posecesbenceéebeds &bkub auee bee eobaae 10

Duncan v. Louisiana, 391 U.S. 145 (1968)

chegehéndneae dene odvunceanhse caeeeauilie toe 6, 10

Frazee v. Dept. of Employment Sec., 489 U.S. 829 (1989)

TTT eT Te ee ee PEt me. ee 2

Frontiero v. Richardson, 411 U.S. 677 (1973)

$Sedendecevetienaheberenwtebens edees cé ce Sis 10

Hamling v. United States, 418 U.S. 87 (1974)

peduucesatées bbb nae nebeeeuabl LaeLe’ bts ceuiuc a 6

Haupt v. United States, 330 U.S. 631 (1947)

906 ceneccesepddevnen waned ukecab seeds aecuas 11

Iilinois v. Wardlow, 119 S.Ct. 1573 (cert. granted), Sup. Ct.

No. 98-1036 (January 12, 2000)

-V-

In re Winship, 397 U.S. 358 (1970)

Peers eT ee TTT TTT Tes CTT TTT eee 5, 6, 8,9, 12

Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215 (1999)

Senwndks baeeenChdeedheeneeeceedseset 3,7

Leary v. United States, 395 U.S. 6 (1969)

hehe chase eeet keee bees cvtdeccens 6

Loving v. Virginia, 388 U.S. | (1967)

(pica aewetdaces dungesoucseas 10

MeMillan v. Pennsylvania, 477 U.S. 79 (1986)

spadded wash beeen beetnenteckasngcoesendus 7,9, 10

Mullaney v. Wilbur, 421 U.S. 684 (1975)

vivewh babs ae ebbeGe buthae Oneseadeds sees 5, 6, 7, 8,9

Patterson v. New York, 432 U.S. 197 (1977)

Send cbidede cobs ceeles tet anbhevedéecso scons 6, 7, 12

Pickett v. Brown, 462 U.S. 1 (1983)

10

EEUU cocdobecesvcucecceeesccestececcdeseeses 10

Slack v. McDaniel, 119 $.Ct. 1025 (cert. granted), Sup.Ct. No.

98-6322 (October Term 1998)

*_*-.

eeeeseseeeeeeseeenvweeese7eeeseseeseee5neeeeeeeeeeeeeeeeeeeee

-Vi-

Spencer v. Texas, 385 U.S. 554 (1967)

606s odnddede babes vhs cbse neteasintsaanetieesi 11

St. Louis S.W.R. Co. v. Arkansas, 235 U.S. 350 (1914)

in dedbceneseseetdnstutenatieteetescceuenerel 6

Wisconsin v. Mitchell, 508 U.S. 476 (1993)

Sandee 6000060040000604 0s 6066s eaeeticnscdi 4,5, 11

Wyoming v. Houghton, 526 U.S. 295 (1999)

Vanetveneesed dedsdhabecdénnn obese enhsssanels 2

Rules & Statute

New Jersey Hate Crime Law, N.J.S.A. § 2C:44-3e

90 gbsdebs ae odewandsbauneese uk ddeueebecawn 3,4, 5,9

Rule 403 of the Federal Rules of Evidence

nine din th de bee wes ake aed 0 ane cedtewtecsae ll

Rule 404 (b) of the Federal Rules of Evidence

enbdemedecthecdeeddthere déstatreseebdnseda 11

Other Sources

Anti-Defamation League, HATE CRIME STATUTES: A 1991

SOR GE PO TIOED 6 ccc cccscccveneesecestin 9

Crimes Motivated by Hatred: The Constitutionality and Impact

of Hate Crime Legislation in the United States, | Syracuse J.

GEO Ge Se ES US oc bc dubuccdnanudenevess +

Andrew E. Taslitz, Condemning the Racist Personality: Why

the Critics of Hate Crimes Legislation are Wrong, 40 Boston

-vil-

Coll. Law Rev. 739 (May 1999) .......-.05eeeeeenes 4

“Are Hate Crime Laws Necessary?”, New York L.J.,

November 1, 1999, p.1 .. 0.0... cece eee eee eee eeee A

What if Wisconsin v. Mitchell Had Involved Martin Luther

King, Jr.? The Constitutional Flaws of Hate Crime

Enhancement Statutes, 65 Geo.Wash.Law Rev. 1014 (1997)

No. 99-0478

a

In The

SUPREME COURT OF THE UNITED STATES

CHARLES APPRENDI, JR..,

Petitioner,

Vv.

THE STATE OF NEW JERSEY,

Respondents.

On Writ of Certiorari to the

Supreme Court of New Jersey

BRIEF AMICUS CURIAE OF THE RUTHERFORD

INSTITUTE IN SUPPORT OF PETITIONER

TO THE HONORABLE CHIEF JUSTICE AND

ASSOCIATE JUSTICES OF THE SUPREME COURT OF

THE UNITED STATES:

-™

Il. STATEMENT OF AMICUS CURIAE

INTEREST AND INTRODUCTION'

The Rutherford Institute is an international, non-profit civil

liberties organization with offices in Charlottesville, Virginia and

internationally. The Institute, founded in 1982 by its President,

John W. Whitehead, educates and litigates on behalf of

constitutional and civil liberties. Attorneys affiliated with the

Institute have filed petitions for writ of certiorari in the United

States Supreme Court in more than two dozen cases, and

certiorari has been accepted in two seminal First Amendment

cases, Frazee v. Dept. of Employment Sec., 489 U.S. 829

(1989) and Arkansas Educational Television Comm'n. v.

Forbes, 523 U.S. 666 (1998). Institute attorneys have filed

over three dozen amicus curiae briefs in the United States

Supreme Court, including recent criminal justice cases Wyoming

v. Houghton, 526 U.S. 295 (1999), Slack v. McDaniel, 119

S.Ct. 1025 (cert. granted), Sup.Ct. No. 98-6322 (October

Term 1998), and //linois v. Wardlow, 119 S.Ct. 1573 (cert.

granted), Sup. Ct. No. 98-1036 (January 12, 2000), as well as

a multitude of amicus curiae briets in the federal and state

courts of appeals. Institute attorneys currently handle several

hundred cases nationally, including numerous fourth

Amendment cases. The Institute has published educational

materials and taught continuing legal education classes in this

area as well.

| Amicus curiae The Rutherford Institute files this brief with the consent

of counsel for both parties. Counsel for The Rutherford Institute authored

this brief in its entirety. No person or entity, other than the Institute, is

supporters, or is counsel, made a monetary contribution to the preparation

or submission of this brief.

fi.

Il. SUMMARY OF ARGUMENT

The New Jersey Hate Crime Law, N.J.S.A. § 2C:44-3e,

fails to comport with federal due process requirements pursuant

to the Fifth and Sixth Amendments. The statute allows the

State’s criminal courts to substantially enhance, and in many

cases to double, the applicable term of imprisonment imposed

upon a defendant upon a finding by a preponderance of the

evidence that the defendant possessed the requisite mens rea.

Further, the statute deprives defendants of the basic due process

safeguards of a jury of their peers and proof of the

discriminatory motive beyond a reasonable doubt, despite that

the criminal intent the statute seeks to redress is (quite

appropriately) the subject of the severest societal stigma and

disapprobation. Accordingly, the Supreme Court of New Jersey

should be reversed, and the case remanded for a retrial

consistent with the Petitioner’s constitutional protections.

il. ARGUMENT

Petitioner's appeal invites the Court to address

constitutional due process issues left unresoived in the Court’s

recent decisions in Almendarez-Torres v. United States, 523

U.S. 224 (1998), and Jones v. United States, 526 U.S. 227

(1999). Unlike the questions addressed in A/mendarez-Torres

and Jones, which related to statutory construction of federal

penal statutes, Petitioner’s case involves a state criminal statute

that has been interpreted by the highest court of that state and

found to be consistent with the mandates of federal

constitutional due process. Thus, the Court is confronted with

a clear and urgent constitutional issue, presented in the equally

important context of increasing state criminalization of “hate

crimes”: Whether a penal statute that permits a court to

effectively double the maximum penalty upon conviction of a

-4-

crime upon proof by a preponderance of the evidence that the

defendant possessed discriminatory intent, without benefit of

notice in the charging instrument or trial by jury, offends the

Fifth and Sixth Amendments of the United States Constitution.

Amicus The Rutherford Institute respectfully submits that in the

particular context of state “hate crime” legislation, which

depends upon a demonstration of a discriminatory motive on the

part of the defendant to establish the requisite mens rea for the

penalty enhancement, due process mandates that such a

determination be made by a jury of the defendant’s peers,

subject to the “reasonable doubt” standard of proof.’

1. The New Jersey Hate Crime Law, N.J.S.A. §

2C:44-3e, Contravenes Federal Constitutional

> The Court’s amicus notes that the question presented in this case

does not address the constitutionality of state “hate crime” statutes

under the Fifth and Sixth Amendments per se. While the Court

declined to find such statutes unconstitutional under the First

Amendment to the United States Constitution in Wisconsin v.

Mitchell, 508 U.S. 476 (1993), that decision did not address prima

facie challenges to hate crimes statutes arising under the due process

provisions of the Constitution. The position of the Court’s amicus

expressed herein should not be construed to express an opinion on this

issue, which it believes remains an open question. Cf Crimes

Motivated by Hatred: The Constitutionality and Impact of Hate

Crime Legislation in the United States, | Syracuse J. of Leg. & Pol.

29 (1995);Andrew E. Taslitz, Condemning the Racist Personality:

Why the Critics of Hate Crimes Legislation are Wrong, 40 Boston

Coll. Law Rev. 739 (May 1999); “Are Hate Crime Laws Necessary?”

New York L.J., November 1, 1999, p.1; What if Wisconsin v.

Mitchell Had Involved Martin Luther King, Jr.? The Constitutional

Flaws of Hate Crime Enhancement Statutes, 65 Geo.Wash.Law Rev.

1014 (1997).

Se i ae ae

= Ge viel

dis

Due Process Under the Fifth and Sixth

Amendments by Permitting Courts to

Effectively Double Applicable Terms of

Imprisonment Upon a Finding that the

Defendant “More Likely than Not” Possessed

the Requisite Discriminatory Mens Rea.

The New Jersey Hate Crime Law at issue herein, N.J.S.A.

§ 2C:44-3, is similar in structure and intent to the hate crime

statute reviewed by the Supreme Court in Wisconsin v.

Mitchell, 508 U.S. 476 (1993). See id. at 508 U.S. at 482, n.4.

On its face, it is a mandatory penalty enhancement statute,

providing that a court “shall,” upon application of the

prosecutor, sentence a person who has been convicted of a

crime to an extended term of imprisonment if it finds by a

preponderance of the evidence that “[t]he defendant in

committing the crime acted with a purpose to intimidate an

individual or group of individuals because of race, color,

gender, handicap, religion, sexual orientation or ethnicity.”

N.J.S.A. § 2C:44-3e.

It is a virtual truism that “the primary responsibility for

fixing criminal penalties lies with the legislature.” Wisconsin v.

Mitchell, 508 U.S. at 486. On the other hand, the Court has

made it equally clear in /n re Winship, 397 U.S. 358 (1970) and

subsequent cases that a legislature may not define criminal

statutory elements and penalty enhancements in its own absolute

discretion, and that Winship mandates inquiry into “substance

rather than ... formalism” in determining whether the statute

comports with due process. Mullaney v. Wilbur, 421 U.S. 684,

699 (1975). “The rationale of [Winship] requires an analysis

that looks to the ‘operation and effect of the law as applied and

enforced by the State ... and to the interests of both the State

and the defendant as affected by the allocation of the burden of

-6-

proof,” the Court has cautioned. /d., quoting St. Louis S.W.R.

Co. v. Arkansas, 235 U.S. 350, 362 (1914). Consequently, the

Court’s task herein is to assess whether New Jersey has

“undermine|[d] ... the interests that | Winship] sought to protect”

by “redefin[ing] the elements that constitute different crimes,”

Mullaney, 421 U.S. at 698, in order to characterize as an

aggravating factor a mens rea requirement that is actually an

element of the crime subject to notice via complaint or

indictment, Patterson v. New York, 432 U.S. 197, 210 (1977),

and the right to a jury trial. Duncan v. Louisiana, 391 U.S.

145, 149(1968); Almendarez-Torres, supra; Hamling v. United

States, 418 U.S. 87, 117 (1974).

Where the standard of the state’s proof is a “preponderance

of the evidence,” the defendant has essentially the same burden

of proof as the state does: whether it is “more likely than not,”

or in the case of the defendant’s burden, less likely than not,

that he possessed discriminatory intent. The determination that

the defendant committed a reprehensible “hate crime” is thus

almost equibly poised between establishing hate and absolving

the defendant of animus. The Supreme Court has found

sentencing schemes violative of due process where they impose

an undue burden upon a defendant to negate a state of mind to

avoid culpability. See, e.g., Mullaney v. Wilbur, 421 U.S. 684

(state could not impose burden on murder defendant to establish

that he acted in the “heat of passion on sudden provocation” to

reduce homicide to manslaughter); Leary v. United States, 395

U.S. 6 (1969) (due process prohibited penal provision

authorizing jury to infer from defendant’s possession of

marijuana that he knew of the illegal importation).’ Further,

' Patterson v. New York is not contrary to this view.

Patterson upheld a state murder statute that required an accused

to raise an affirmative defense that he “acted under the influence

.%

“although intent is typically considered a fact peculiarly within

the knowledge of the defendant, this does not, as the Court has

long recognized, justify shifting the burden to him.” Mullaney,

421 U.S. at 702; cf Davis v. United Siates, 160 U.S. 469

(1895) (reversing murder conviction because trial judge

instructed jury is was their duty to convict if the evidence was

equally balanced regarding the sanity of the accused).

Particularly where, as here, the defendant’s failure to overcome

the equivocal quantum of proof required by the preponderance

standard subjects him to a substantially longer prison term, “due

process demands more exacting standards.” Mullaney, 421

U.S. at 702, n.31. Jones v. United States, supra, 526 U.S. at

__, 119 S.Ct. 1215, 1219 (“It is at best questionable whether

the specification of facts sufficient to increase a penalty range by

two-thirds, let alone from 15 years to life, was meant to carry

none of the process safeguards that elements of an offense bring

with them for a defendant’s benefit.”) The standard of proof

of extreme emotional disturbance for which there was a

reasonable explanation or excuse.” 432 U.S. at 198. The Court

merely refused to require as a matter of due process that the

prosecution negate all circumstances that may constitute

affirmative defenses, relying particularly on the fact that the

defendant generally has access to the evidence tending to

establish such defenses. 432 U.S. at 211. Thus, Patterson

turned on the difficulty of proving factors extrinsic to the

defendant’s state of mind, and does not stand for the general

proposition that a defendant may be required to prove his state

of mind to avoid liability. Cf McMillan v. Pennsylvania, 477

U.S. 79 (1986) (“visible possession of a firearm” not an element

of the crime charged; characterizing Patterson as rejecting the

claim that reasonable doubt standard required whenever a state

links the severity of punishment to “the presence or absence of

an identified fact” [emphasis added].)

-8-

mandated for pr of of an offense represents an attempt to

instruct the factfinder concerning the degree of confidence

society believes he or she should have in the correctness of

factual conclusions. Winship, 397 U.S. at 370 (Harlan, J.,

concurring). The longer the loss of liberty potentially imposed

on the defendant, and the higher the degree of stigmatization

resulting to the defendant from conviction, the clearer the

adjudication must be. Mullaney, 421 U.S. at 699-700; Winship,

397 U.S. at 363, 364 (“use of the reasonable doubt standard is

indispensable to command the respect and confidence of the

community in applications of the criminal law. It is critical that

the moral force of the criminal law not be diluted by a standard

of proof that leaves people in doubt whether innocent men are

being condemned.”)

The Court in Winship rejected the suggestion that there is

“only a tenuous difference” between the reasonable-doubt and

preponderance standards, finding that “the preponderance test

is susceptible to the misinterpretation that it calls on the trier of

fact merely to perform an abstract weighing of the evidence in

order to determine which side has produced the greater

quantum, without regard to its effect in convincing his mind of

the truth of the proposition asserted.” 397 U.S. at 367-68.

Likewise, in striking down Maine’s penalty statute in Mullaney,

the Court observed:

Under [the preponderance of the evidence] burden of proof

a defendant can be given a life sentence when the evidence

indicates that it is as likely as not that he deserves a

significantly lesser sentence. This is an intolerable result in

a society where, to paraphrase Mr. Justice Harlan, it is far

worse to sentence one guilty of manslaughter as a murderer

than to sentence a murderer for the lesser crime of

manslaughter.

-9.

421 U.S. at 703-04 (emphasis in original), citing Winship, 397

U.S. at 372 (concurring opinion). The Court’s amicus submits

that where a defendant is “as likely as not” to be branded with

the stigma of being the perpetrator of a hate crime and

subjected to a potentially doubled term of imprisonment, it is

“far worse” to risk sentencing him as such than to impose a

lesser, non-enhanced sentence for the substantive offense. Such

a criminal justice regime “systematically ... work{s] to the

disadvantage of a criminal defendants,” and consequently

offends due process. Almendarez-Torres, 523 U.S. at 244-45.

2. The New Jersey Hate Crime Law, N.J.S.A. §

2C:44-3e, Contravenes Federal Constitutional

Due Process Under the Fifth and Sixth

Amendments by Depriving Defendants of the

Benefit of a Jury of Peers and Proof Beyond a

Reasonable Doubt of Criminal Intent that is

Subject to the Severest Possible Societal Stigma

and Disapprobation.

Hate crime statutes are modern statutory creatures that are

not analogous to any aggravating factors recognized at common

law. See Anti-Defamation League, HATE CRIME STATUTES: A

1991 STATUS REPORT 2-5 (1991) (describing Anti-Defamation

League’s model hate crime statute and noting that over one-half

of state statutes based on model statute). While ordinarily the

Court will look to the extent to which a factor in criminal

prosecution “has historically been treated ‘in the Anglo-

American legal tradition’ as requiring proof beyond a reasonable

doubt,” Almendarez-Torres, 523 U.S. at 255, (Scalia, J.,

dissenting), quoting McMillan, 477 U.S. at 87-88, this analysis

is unavailable to the Court in the case of hate crimes legislation.

Nonetheless, the Court’s construction of hate crime sentencing

acts may be informed by its rich history of civil rights

-10-

jurisprudence, insofar as hate crime laws are an amalgam of

Fourteenth Amendment equal protection jurisprudence and the

criminal law. The fundamental principles this Court has derived

from the Fourteenth Amendment include heightened standards

of proof imposed to justify class-based legislative distinctions.

For example, in striking down Virginia’s miscegenation statute,

the Court declared that “the Equal Protection Clause demands

that racial classifications, especially suspect in criminal statutes,

be subjected to the ‘most rigid scrutiny.” Loving v. Virginia,

388 U.S. 1, 11 (1967) (emphasis supplied). See also Regents

of the University of California v. Bakke, 438 U.S. 265 (1978);

Frontiero v. Richardson, 411 U.S. 677 (1973) (heightened

scrutiny required for gender-based statutory distinctions);

Pickett v. Brown, 462 U.S. 1 (1983) (heightened scrutiny

required for distinctions based on illegitimacy). Because “the

penalty authorized by the law of the locality may be taken ‘as a

gauge of its social and ethical judgments,” Duncan v.

Louisiana, 391 U.S. 145, 160 (1968), quoting District of

Columbia v. Clawans, 300 U.S. 617, 628 (1937), that societal

judgment should be subjected to the highest standard of

protection for an accused perpetrator of a hate crime, not only

to protect the innocent accused, but to preclude a “rush to

judgment” in circumstances which have the potential to inflame

community sensibilities.

Further, discriminatory animus is an issue that is bound up

in the actual commission of the offense, not a predicate

circumstance such as the recidivism aggravator reviewed in

Almendarez-Torres, supra, or similar “identified facts,” such as

the visible possession of firearm aggravator upheld in

McMillan, supra. The statute requires proof of discriminatory

animus as a substantial factor in the commission of the offense;

in other words, it mandates the establishment of a degree of

causation in fact. The result in many instances may be a retrial

of the circumstances of the offense to establish the defendant's

motivation, a practice the Court has found to implicate due

process concerns. See, e.g., Specht v. Patterson, 389 U.S. 605,

608 (1967) (defendant convicted for sex crime could not be

sentenced under a different statute dealing with sex offenders,

since sentencing statute “makes one conviction the basis for

commencing another proceeding under another Act ... That is

a new finding of fact that was not an ingredient of the offence

charged.”)

Nor does the concern for inflammation of the jury by proof

of discriminatory animus, expressed by the majority in the court

below, require placing the decision on the application of the

hate crime statute in the court’s hands. “Evidence of a

defendant’s previous declarations or statements is commonly

admitted in criminal trials subject to evidentiary rules dealing

with relevancy, reliability, and the like.” Wisconsin v. Mitchell,

508 U.S. at 489; Haupt v. United States, 330 U.S. 631 (1947).

Although Rule 404 (b) of the Federal Rules of Evidence allows

discretionary introduction of evidence of prior acts where

probative of, inter alia, motive and intent, the prophylactic

provisions of Rule 403 of the Federal Rules of Evidence serve

to exclude such evidence if it tends to unfairly prejudice the

jury. See Almendarez-Torres, 523 U.S. at 268-69 (Scalia, J.,

dissenting); Spencer v. Texas, 385 U.S. 554, 561 (1967) (“The

defendant's interests [in keeping prejudicial prior convictions

from the jury] are protected by limiting instructions and by the

discretion residing with the trial judge to limit or forbid the

admission of particularly prejudicial evidence even though

admissible under an accepted rule of evidence.”)

12.

IV. CONCLUSION

The Court’s amicus respectfully suggests that while

considerable deference should ordinarily be accorded to the

policy choices expressed by state legislatures through their

penal statutory schemes, an affirmance of the Supreme Court of

New Jersey ’s decision upholding that state’s hate crime statute

would, “in the name of preserving legislative flexibility ... drain{ ]

In re Winship of much of its vitality.” Patterson v. New York,

432 U.S. at 216 (Brennan, J., dissenting). Federal due process

extends to require that statutory factors that are structured and

phrased as sentencing enhancements, yet go directly to the

defendant's discriminatory state of mind in perpetrating the

charged crime, be construed as elements of the offense, subject

to the constitutional safeguards of notice and proof to a jury

beyond a reasonable doubt. The decision of the Supreme Court

of New Jersey should accordingly be reversed, and the case

remanded for a retrial consistent with the Petitioner's

constitutional rights of due process.

Respectfully submitted,

Pa ;

(2) John W. Whitehead

Steven H. Aden

THE RUTHERFORD INSTITUTE

1445 East Rio Road

Charlottesville, Virginia 22901

(804) 978-3888