St. Mary's Law Journal


Nearly without exception, modern legislatures have responded to the reprehensible nature and detrimental social effects of hate crime by enacting laws specifically designed to punish the offender’s discriminatory animus. The term “hate crime” describes criminal conduct which is motivated by the offender’s bias or prejudice against another cognizable group. Although the reprehensible nature of a hate crime is often apparent from the facts of any given case, the repercussions of these offenses exceed the ignoble character of any one specific act. Texas has now joined the ranks of these jurisdictions by adopting legal provisions which authorize heightened penalties upon a trial court finding the defendant selected a victim based on the defendant’s personal bias or prejudice. Although the social affliction of bias-related crime may warrant a legislative response, even the current magnitude of this quandary does not overshadow the need for compliance with constitutional norms in the fashioning of a legal solution. In the wake of intense media publicity and resulting political pressure, the Texas Legislature hurriedly enacted a law which, while following a sound general approach, may be subject to constitutional challenge for its ambiguity. The new Texas hate crimes legislation contains several provisions differentiating between ordinary criminal penalties and those penalties authorized when the defendant selected the victim because of the offender’s biased beliefs. The legislature’s rationale for failing to specify the type of “bias or prejudice” required to trigger enhanced penalties is tantamount to the very type of motive which antidiscrimination laws are designed to punish. While law makers and jurists through the nation have begun to implement legal provisions which proscribe discriminatory practices which are motivated by the defendant’s bias against another’s sexual preference, Texas has apparently reached an impasse on this issue. Perhaps the time has come to break the stalemate.


St. Mary's University School of Law