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Excerpted From: Unknown, Combatting Racial Violence: A Legislative Proposal, 101 Harvard Law Review 1270 (April 1988) (Note) (76 Footnotes) (Full Document: Check with Library)


In the early morning of December 20, 1986, four black men were driving in the vicinity of Queens, New York, when their car broke down. Three of them walked north into Howard Beach to seek help, eventually arriving at a pizzeria. As they were leaving the pizzeria, a group of nine to twelve white males armed with baseball bats and sticks confronted them, taunting them with racial insults and epithets. The black men fled, but the white gang caught two of them and beat them severely. The two managed to flee, but the white gang again caught and beat them. After escaping once again, the two black men split up: one was killed by a passing car; the other, dazed and bruised, was found by the police.

The Howard Beach incident highlights an alarming trend of increasing racial violence against minorities in the United States, dramatizing the intense racial hatred and prejudice that still plague this country. Most states still do not have special criminal laws to deal with the problem of racial violence against minorities; only nine states have enacted criminal civil rights laws. Moreover, these laws have generally proved ineffective in protecting minorities. One problem may be that all of the criminal civil rights laws include the element of racial motivation, requiring the prosecution to prove beyond a reasonable doubt that acts of interracial violence were racially motivated.

Because current laws cannot adequately combat racial violence, this Note proposes that state legislatures enact special criminal civil rights laws that relieve the government of the burden of proving racial motivation. Part I describes the legislative proposal: crimes of interracial violence in which the perpetrator is white and the victim nonwhite should be punished more severely than similar intraracial crimes, regardless of racial animus. Under the proposed statute, however, the defendant would be given an opportunity to mitigate the punishment by proving, in the form of an affirmative defense, that he did not act with racial animus. Part II analyzes the constitutionality, under the due process clause and the eighth amendment, of shifting the burden of proof in a criminal case for issues that can be characterized as affirmative defenses. Part III argues that this proposal, which invokes racial classifications for benign discrimination, does not violate the equal protection clause of the fourteenth amendment.

[. . .]

Criminal civil rights statutes that shift to defendants the burden of proving the absence of racial motivation are both desirable and constitutional. Relieving states of the need to prove racial motive before punishing interracial crimes against minorities more severely than intraracial crimes will facilitate society's efforts to prevent the considerable harms caused by interracial violence regardless of whether it is motivated by racial animus. Application of the Solem factors of proportionality to the proposed legislation demonstrates that such statutes would comport with the eighth amendment. The substantial harms, individual and communal, caused by interracial violence against minorities and the significant differences between this type of violence and intracial violence justify more severe punishment for such crimes, regardless of whether the prosecution can prove the existence of racial motivation. Moreover, notwithstanding the explicit use of racial categories in this legislative proposal, the proposed legislation does not violate the equal protection clause. The benign effect of the statute on racial minorities distinguishes it from other racial classifications the Court has held unconstitutional in the past.

Ultimately, each state legislature must decide for itself the need for criminal statutes such as those proposed in this Note; nevertheless, the situation is urgent in many states. Racially motivated violence is on the rise, and the current legal framework is inadequate to deal with the problem. State legislatures must distinguish between interracial violence against minorities and intraracial violence and establish a legal framework that will protect and promote more effectively the fundamental American ideals of racial harmony, pluralism and equality.

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