A basic tenet of due process requires that a law give a defendant notice of what conduct is criminal.  Without such notice, there would be no way to know that it shouldn’t be committed. So it comes as no shock that the New Jersey Supreme Court held that section 3 of the Bias Intimidation law, N.J.S.A. 2C:16-1, was rejected as unconstitutional in State v. Pomianek.

While the other prongs of the crime remain untouched, a facial challenge prevailed against the third prong:

A person is guilty of the crime of bias intimidation if…

(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

In other words, a crime occurs because the victim felt intimidated, and the victim’s feelings weren’t unreasonable.  As the New York Times reported:

The court, the state’s highest, unanimously ruled that the 2001 statute was “unconstitutionally vague,” because it does not give defendants fair notice of when they are crossing the line to commit a crime.

It would be facile to say that this should have been a slam dunk, as the law is facially, and undoubtedly, unconstitutional, and yet the law was enacted and, until the Supreme Court ruled in this case, upheld.

Lawrence S. Lustberg, who argued the case for the state’s Association of Criminal Defense Lawyers, said the statute was arbitrary because it could mean that even if two defendants committed the same crime, one could be found guilty and the other not depending on what the victim thought.

“The whole idea is that when you commit an act, you’re supposed to know, ‘Am I committing a crime or not?’ ” he said on Tuesday. “If criminal liability depends on another person’s idiosyncratic point of view, the defendant can’t possibly be on notice.”

Well, yeah, sure.  Obviously.  At least, obviously now, though the defendant had to fight his way to the state Supreme Court before the obvious became obvious.  The constitutional flaw in this law is flagrant, in that the crime is defined by the feelings of the victim.  If the victim felt intimidated, and the victim’s feelings weren’t unreasonable, then the defendant committed a crime.

But how would a person define the parameters of another person’s feelings?  The wrongfulness of conduct would turn on the sensitivities of other people.

“Whether a victim reasonably believes he was targeted for a bias crime will necessarily be informed by the victim’s individual experiences and distinctive cultural, historical and familial heritage — all of which may be unknown or unknowable to the defendant,” Justice Barry Albin wrote in the opinion.

The law isn’t saved by the “reasonableness” element, as it may be perfectly reasonable that a person’s delicate feelings are hurt, and yet the defendant had no way of knowing how delicate the victim’s feelings were. It would require some truly bizarre feelings to meet the standard of legally unreasonable. It’s not much of a bar to criminality.

Ordinarily, the first thing one wonders about in a case like this is what the defendant did that gave rise to the crime, but in a facial challenge to a law, as opposed to an “as applied” challenge, the underlying conduct isn’t relevant.  The question in the former is whether the law fails to pass constitutional scrutiny, without regard to the specifics of the individual case, by being vague or overbroad.

And indeed, it’s the failure to grasp this distinction that gives rise to the passage of flagrantly unconstitutional laws, and the cries of foul when they’re held unconstitutional.  Colorado lawprof Nancy Leong provides a demonstration.

The statue — unique among various state bias intimidation statutes — therefore requires individuals to refrain from engaging in harassing or intimidating conduct that reasonable  people would believe is motivated by race. This does not seem like an particularly onerous burden. It doesn’t require people to read minds or to know about the subjective individual experiences of those with whom they interact. It just requires people to have an understanding of what reasonable people of other races would perceive as motivated by bias. In any society — particularly our large, diverse one — this is a responsibility that we owe one another.

For someone teaching criminal law, it wouldn’t seem “like a particularly onerous burden” to raise the appropriate issue and accurately state the requirements of due process.  Part of the problem here is that when issues of bias arise, whether with race or gender, people with peculiar sensitivities to it believe that their views are so obvious, so beyond question, that anyone they deem insensitive is obviously a criminal.

It doesn’t seem like a particularly heavy burden to require the defendant in this case to know that a reasonable black person would perceive this interaction to be motivated by bias.

That may well be true, but it’s utterly irrelevant to a facial constitutional challenge.  The constitutionality of the law doesn’t hinge on this specific application, but on its application to all circumstances.

So apparently the privilege of a “tone-deaf” — perhaps a better phrase would be “racially oblivious” — defendant to engage in biased behavior without criminal punishment takes priority. According to the New Jersey Supreme Court, the privilege of racial ignorance outstrips the importance of allowing racial minorities to live in a world where people don’t harass and intimidate them in ways that a reasonable person would perceive to be motivated by racial bias. It would be far too difficult, says the court — unconstitutionally vague, in fact — to require people to know what behavior would demonstrate bias or intimidation to others.

Putting aside the resort to the trope of “privilege,” that’s not at all what the decision holds, and I will assume that if Nancy’s eyes weren’t clouded by her feelings, she would easily recognize this. The Court by no stretch of imagination condoned bias or intimidation, but held as the Constitution requires that a criminal law must give a defendant notice of where the line is drawn.  And the lines can’t be a moving target based upon another person’s feelings. That’s true of the “victim” in that case, and it’s true of Nancy’s feelings as well.

What is deeply troubling, however, is that Nancy’s criticism of the decision reflects a growing blind willingness of legal academics to deliberately ignore basic law, contort their commentary to suit their own glaring bias in support of laws criminalizing violations of the issues dear to their hearts, and, when the issue relates to certain types of bias, lend their academic credentials to flagrantly unconstitutional advocacy.

And if the disconnect between law and advocacy isn’t clear enough, consider Nancy’s closing paragraph:

Ultimately, the kind of thinking that motivated the New Jersey Supreme Court’s invalidation of the bias intimidation statute is an outgrowth of the requirement in Equal Protection law that a plaintiff alleging discrimination prove not only disparate impact, but also discriminatory intent. We continue to think that intent matters when it comes to race discrimination.

No. We continue to think intent matters when defining a crime. That’s the difference between thinking and overly sensitive feelings.