On October 7, 2014, the Supreme Judicial Court heard arguments in Commonwealth v. Kelly, SJC-11616, a case interpreting the law that criminalizes certain civil-rights violations. See Case Information Page.

In Kelly, the Plymouth County District Attorney’s Office prosecuted several party-goers for committing civil-rights violations. The District Attorney’s Office accused the party-goers of picking a fight and beating up a black man at the party because he was black. A jury convicted them of several offenses, including hate crimes in violation of G.L. c. 265, §§ 37 and 39. In relevant part, section 37 states that “[n]o person … shall by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him by the constitution or laws of the commonwealth or by the constitution or laws of the United States.” G.L. c. 265, § 37. Similarly, section 39 states that “[w]hoever commits an assault or a battery upon a person … with the intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, gender identity, or disability shall be punished.” Id. § 39.

In the appeal, the Supreme Judicial Court is grappling with “[w]hether, in a prosecution under G. L. 265, § 39, … [a] defendant’s discriminatory intent must be a predominant or substantial reason for the assault.” See Case Information Page.

The answer to this question carries far-reaching consequences. On the one hand, there is social value in an expansive reading of the law. We want prosecutors to have tools to go after perpetrators of hate crimes. On the other hand, care must be taken lest any minimal, fleeting act of discrimination become a hate crime, particularly in so-called mixed-motive crimes.

The following hypothetical illustrates what constitutes a mixed-motive crime. Imagine a white woman who sees a black man engaged in a fight with a friend of hers. The woman jumps into the fray, punches the black man, and calls him a n—–. These facts suggest that the woman may have acted with two motives: one, to help her friend, and two, to intimidate the black man because of his race.

Whether this hypothetical woman has committed a hate crime depends on how we weigh these dual motives. Does her discriminatory intent need to be a predominant, substantial, or but-for reason for the assault? Or can the mere existence of any discriminatory intent constitute an “intent to intimidate … because of [a] person’s race”? Relatedly, does the use of a racial slur, without more evidence, transform any assault into a hate crime?

The argument unfortunately did not reveal how the justices would decide these questions. The argument did highlight, however, several important practice points for litigators and criminal defendants.

First and foremost, the Kelly case and others like it turn on questions of statutory construction. Consequently, a thorough analysis of the statute’s text and its legislative history would have been tremendously valuable to the justices as they decide the case. Unfortunately, the litigants failed to offer any insight into why the Legislature drafted the hate-crime statute as it did. During the argument, the justices asked for such insight but received none from any of the litigants.

Similarly, the assistant district attorney struggled in answering the justices’ questions about the interpretation of the hate-crime statutes. In particular, the justices wanted to know how two sections of the hate-crime statutes (sections 37 and 39 of chapter 265) differed, and whether section 37 swallowed all assaults. Both questions arise from canons of statutory construction that make courts loathe to render any statute surplusage. Neither question received clear answers.

Second, the argument highlighted the importance of grappling with the broader consequences of a case’s outcome. A litigator is always tempted to keep the argument focused on the client and the best outcome for the client. While this client focus is important and valuable, it actually hurts the client if done while ignoring the justices’ concerns about the broader effect of a ruling in the client’s favor. Particularly because there was no constitutional challenge to the law, the exercise in argument becomes how to balance the Legislative interest in deterring and punishing hate crimes with the fairness concerns in punishing individuals for their thoughts.

Ultimately, the Court faces a difficult question that will determine how Massachusetts can prosecute violent bigotry. The performance of the litigants at oral argument has set the stage, but the justices still have much work to do to decide the issue.