the U.S. Supreme Court held that the First Amendment does not prohibit a state from providing enhanced punishment for a crime based on the actor's discriminatory purpose in committing the crime

Argued October 13, 1998 -- Decided June 24, 1999

O'HERN, J., writing for a majority of the Court.

    This appeal concerns the constitutionality of a provision of New Jersey's hate crime laws that allows enhanced sentencing in any case in which a defendant who commits a crime acts with a biased purpose. 135 N.J. 517, cert. denied, 513 U.S. 970 (1994). The majority also found that the use of the preponderance of the evidence standard for an extended term did not violate the constitutional requirement that the State must prove each element of a crime beyond a reasonable doubt. It held that racial bias was not an element of the crime charged because the provision was included in the section of the Criminal Code dealing with the court's authority in sentencing. One judge dissented. She found that the federal and state constitutions require that a jury decide each element of a crime beyond a reasonable doubt and that the State's power to define away the elements of the crime cannot extend to defining away the actor's culpable purpose.

    Apprendi filed an appeal as of right based on the dissent below.

HELD: The statute's biased purpose is not an element of the weapons possession charge; the statutory scheme is constitutional.

1. In R.A.V. v. City of St. Paul, 505 U.S. 377 (1992), the U.S. Supreme Court held that when a state regulates unprotected expression such as fighting words, it cannot discriminate on the basis of content without implicating a defendant's First Amendment rights. Thus, if a regulation prohibits the expression of threats or harassment only when the words contain racist hate speech, the regulation is subject to strict scrutiny and may be found under-inclusive. However, in Wisconsin v. Mitchell, 508 U.S. 476(1993), the U.S. Supreme Court held that the First Amendment does not prohibit a state from providing enhanced punishment for a crime based on the actor's discriminatory purpose in committing the crime. (pp. 8-14)

2. Consistent with those principles, this Court has struck down those features of the hate-crime law that fall within the pattern of R.A.V. as being directed at speech or expression. Conversely, it has upheld those features of the law that fall within the pattern of Mitchell as being penalty-enhancers. This Court's decision in Mortimer found no basis for a First Amendment challenge to another penalty-enhancer provision of the hate crime laws dealing with harassment, N.J.S.A. 2C:33-4d. The Court held that the provision did not prohibit expression, but rather harassing conduct, and increased the level of the crime where a person acted with a purpose to intimidate based on race, color, religion, sexual orientation or ethnicity. The Court did conclude that the statutory language, "at least in part with ill will, hatred or bias toward the victim," was unconstitutionally vague because it failed to communicate with sufficient clarity what the statute prohibits. Following the decision in Mortimer, the Legislature amended Fourteenth Amendment requires that the essential elements of a crime be proven beyond a reasonable doubt. However, there is no unerring constitutional calculus for determining what is an essential element of a crime. In McMillan v. Pennsylvania, 477 U.S. 79 (1986), the U.S. Supreme Court upheld a Pennsylvania statute that contained a sentencing factor -- "visible possession of a firearm" - that required the sentencing judge to impose a minimum term. The Court held that the state's linking of the severity of the punishment to the presence or absence of an identified fact did not automatically make that fact an element of the offense. The Court declined to define precisely the constitutional limits on the states' ability to define elements of an offense. (pp. 16-19)

4. The hate-crimes enhancer here resembles McMillan in respect of most of the factors the U.S. Supreme Court deemed relevant. The statute does not shift the burden of proof from the state by presuming a necessary ingredient on proof of the other elements of the offense; the differential in sentencing is not between a nominal fine and a mandatory life sentence; the statute does not create a separate offense calling for a separate penalty; and the statute gives no impression of having been tailored to permit the bias finding to be a tail that wags the dog of the substantive offense. The Legislature simply took a factor that had always been considered by sentencing courts and dictated the weight to be given that factor. (pp. 19-26)

5. The Court believes that this decision will pose no threat to constitutional liberties. There is rarely any doubt whether a defendant committed the crime with the purpose of intimidating the victim on the basis of race or ethnicity.  Amicus Public Defender argues that the Court should hesitate to endorse this sentencing scheme because it could undermine traditional rights to trial by jury. There should be no mistake that this Court would not permit the Legislature, were it so inclined, to remove traditional mens reaor grading factors from the substantive definition of a crime and reallocate them for determination by a judge as part of the sentencing process. (pp. 26-33)