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What Should The Penalties Be, And Does The First Amendment Allow Hate Hoaxes To Be Punished More Severely?

Tuesday, Nov. 13, 2001

The U.S. Postal Service recently stated that, as of November 7, it had responded to almost 12,000 anthrax hoaxes and similar incidents — about 654 per day — which have resulted in the temporary evacuation of 429 postal facilities for varied periods of time.

Meanwhile, FBI Director Robert Mueller says that the FBI has received 2,300 reports of anthrax incidents since October 1. The overwhelming majority of them are obviously hoaxes, yet Mueller points out that investigating these hoaxes has wasted millions of dollars' worth of anti-terrorism resources.

As a result, lawmakers have proposed legislation addressing hoaxes. The Anti-Hoax Terrorism Act, if enacted, would classify hoaxes, and giving false information relating to a terrorist act, as felonies; impose a maximum of five years of imprisonment as punishment; and require that upon conviction, the perpetrator reimburse agencies' investigation and response costs.

The reimbursement provision is a good idea whose time has come. The criminal penalties, however, may be far too much for certain hoaxers and not enough for others. They also raise interesting First Amendment issues akin to those debated when "hate crime" legislation has been proposed.

Punishing Hoaxes More Harshly?

To begin, the new hoax law may prompt us to rethink, to some extent, what has been a fundamental criminal law principle: that incomplete and inchoate crimes (with the exception, sometimes, of conspiracies) are generally punished less severely than completed ones.

Attempted murder, for example, is not punished as severely as murder — yet the difference between the two crimes may merely consist of poor aim. And hoaxes generally are not punished anywhere near as severely as the actual acts they mimic — both due to prosecutorial discretion, and due to more lenient penalties. According to the FBI, it was not until January 7, 2000 that an anthrax hoax ever led to an indictment.

Now, however, we see hoaxes in a very different light. One reason is that after September 11, it is becoming more difficult to believe that terrorist threats will rarely lead to true terrorist actions.

Another reason hoaxes seem different now is that many of them have been running directly parallel to actual, tragic anthrax incidents. With real events in the tens, and hoaxes in the thousands, real anthrax incidents could be lost in a sea of hoaxes. Did the Brentwood postal workers die because authorities were overwhelmed with false reports and could not concentrate on genuine dangers?

This new situation may counsel a penalty of even higher than five years for the most serious of the anthrax hoaxes. Serious hoaxers can also probably be charged under federal threat statutes that provide for longer terms of incarceration, and this practice may allow suitable punishments to be imposed upon the worst perpetrators, even if the hoax legislation that is passed continues to impose a five year maximum on imprisonment.

Hoax Sentencing Guidelines

Whatever the maximum punishment allowable for hoaxes ultimately may be, the question of what punishment particular individuals will receive within the range will remain. Once the Act (or a similar measure) is passed, federal sentencing guidelines should and likely will be created to provide federal judges with guidance as to what penalty to impose on a particular hoaxer.

The need for such guidelines is pressing, given that hoaxers are likely to be arrayed on a particularly wide continuum when we consider their culpability and the need for deterrence. Furthermore, the statute Congress passes will probably treat some of these groups the same, simply because legislation by its nature cannot address every individual situation, so it is crucial to impose sentencing guidelines that allow judges to make fine distinctions between them.

Contrast, for example, the college student who sends laundry powder in the mail to get back at her ex-boyfriend; the journalist who leaves powdered sugar on the chair of a colleague who covers bioterror; and the white supremacist who mails "anthrax" to an organization he despises, with a note claiming that the substance came from Arab-Americans.

The white supremacist is clearly despicable, and should face the worst punishment. But of the other two, who should receive the stronger punishment: the immature, vengeful student or the practical joker journalist? Certainly reasonable minds can differ as to the right answer.

Whatever solution is devised will inevitably be debatable, but we should at least try to impose rational standards on what may be a motley class of defendants — ranging from lone malcontents, to members of dangerous hate groups, to the immature, to the mentally ill and unstable. Our fear of anthrax should not prevent us from taking the time to do individual justice.

Like sentencing guidelines in other areas, the guidelines for punishing hoaxes ought to take the perpetrator's criminal record, or lack thereof, into account. Those with no records — or no records of violent crime, at least — may deserve little punishment, for that group will likely encompass the pranksters and those who use a hoax as personal revenge — and they ought to be sufficiently deterred simply by having their wages garnished for years to pay the investigation costs they triggered.

Yet if a hoaxer does have a record of violent crime, even if it consists of only a single offense, then much greater scrutiny may be warranted — for a violent felon's hoax may be much more sinister, and may be a harbinger of later, more harmful activity.

A Repeat of the "Hate Crimes" Debate, with Hoax Sentencing At Issue?

Taking account of criminal records in sentencing, however, will still not allow us to avoid another important issue. It is the issue of whether hoaxers are being punished not for their actions — which, after all, are victimless except for the terror they create and the costs they consume — but for their beliefs or prior statements, which should be protected by the First Amendment.

After all, it is the hoaxer with a political state of mind who likely will most disturb us. We may think the practical jokester hopelessly immature and insensitive, or the vengeful ex-lover incredibly narcissistic and petty. But it will be the political extremist from a hate group whose anthrax hoax will trouble us the most, because when someone believes that violence is justified, today's hoax may only be a preview of tomorrow's terrorist act.

Accordingly, hoax sentences will very likely raise First Amendment issues, similar to those raised by "hate crimes" statutes. The question will be, when two people commit the same crime, should the guidelines provide that the person with hate in his or her mind receives a higher sentence than the person with a more trivial motive?

President Bush tried to stay away from similar questions by avoiding the hate crime issue as much as possible during the Presidential debates. But he may now endorse taking state of mind into account in hoax sentencing in the wake of the September 11 terrorism attacks.

Indeed, a definite, pro-hate-crime position might serve the Administration well at this point. A strong federal anti-hate-crime statute that could help protect Arab-Americans from attack might be both politic — for Bush needs Arab-Americans strongly on his side — and effective in preventing the beatings and threats, and in at least one case, a murder that Arab-Americans have faced since September 11.

First Amendment Implications of Hoax Sentencing

What about the First Amendment implications of increasing sentences based upon evidence that a particular hoax was also a hate crime? Certainly imposing punishment based, in part, on political beliefs threatens the heart of the First Amendment, which is right to have and to express the beliefs one chooses.

However, in practice the fact that political beliefs come into play only at the sentencing stage, and not at the stage where guilt is decided, may decrease courts' concern about First Amendment rights. After all, the person being sentenced is already a felon, and thus arguably may have his or her rights somewhat curtailed — at least under existing doctrine, the wisdom of which is very debatable.

Moreover, if the sentencing guidelines can be framed to be relatively "content-neutral," they may be in safer territory from a First Amendment perspective. The guidelines could focus primarily, for example, not on the First-Amendment-protected beliefs and prior remarks of the hoaxer or his or her organization, but on the character of the particular threats that the message accompanying the "anthrax" contains.

Alternatively, evidentiary restrictions at the sentencing stage, limiting the relevant evidence to that directly pertinent to the crime would, accomplish the same purpose — the purpose of not imposing a sentence on a person based, in part, on his or her prior political activity and exercise of free speech rights.

Punishment and Prevention

Of course, this column — like the proposed hoax statute — assumes that hoaxers are likely to be caught and punished, and that there will be enough hoaxers caught that distinguishing between them might become a serious policy issue. So far, though, these assumptions have not proved correct; comparatively few hoaxers are in custody. And that calls into question whether the hoax law is really where we should be spending our energy in the first place.

We should not make the mistake of imposing Draconian punishments on even relatively innocuous hoaxes in order to try to deter hoaxers, while at the same time ignoring needed prevention. This type of strategy adds what lawyers call a "kicker" — by multiplying punishments for those caught in order to account for the difficulty of apprehension. (Roughly, the idea is, if only a tenth of culprits are caught, the penalty should be ten times as high.) But where hoaxes are concerned, the "kicker" strategy is misguided, now more than ever. We need to amp up prevention, not punishment, to address the too-small number of hoax arrests and indictments.

Just as the FBI has shifted focus to prevention of terrorism as well as apprehension of terrorists, the postal service should follow Federal Express' example by tracking the mail and requiring confirmation of the identity of the sender when a package is sent. Along with a national ID card system, such measures would go a long way towards stopping mail terrorism, or at least allowing perpetrators to be caught.

Before punishing hoaxers, we must catch them first. And more importantly, we will not catch actual terrorists without an effective system of tracking mail.

Julie Hilden, a FindLaw columnist and a graduate of Yale Law School, is a freelance writer and the author of the memoir "The Bad Daughter." She practiced First Amendment law as an associate at the Washington, D.C. firm of Williams & Connolly from 1996-99.

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