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While people were either in a state of euphoria or one of great angst on Friday following the Supreme Court’s same-sex marriage ruling, very little attention was being paid to the fact that so shortly after the shootings at the church in Charleston, South Carolina, six fires have hit African-American  churches in Florida, Georgia, North Carolina and South Carolina and Tennessee.  Three have been ruled arsons and the others are still under investigation.

This seems to me to be a big deal but was pretty much under the radar because of the gay marriage ruling and the hunt for the escaped convicts in upstate New York.  I’m not sure if the major media outlets felt they had covered “enough” racial stories but even recognizing the busy news cycle, I find it hard to justify how little attention this story was given (although it seems to be getting some belated attention, now).  Does the media believe we can’t handle “too many” stories about racism and racial hatred?  Does it feel compelled to offer variety, for variety’s sake, even if the most important stories continue to hew to the same unfortunate theme?

Here in New Jersey, we have a bias crime statute but in March of this year, our Supreme Court struck down a portion of it by a vote of 6-0.State v. Pomianek, 221 N.J. 66, 110 A.3d 841 (2015).

That statutory provision which did not pass constitutional muster made it illegal for a person to commit certain enumerated crimes:

“(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.”

N.J.S.A. 2C:16–1(a)(3)

The New Jersey Supreme Court found this provision to be “sufficiently vague that a person of reasonable intelligence cannot discern the dividing line between criminal and lawful behavior. A line that moves based on the victim’s perceptions, however reasonable and perhaps mistaken, does not give adequate notice of what is prohibited and therefore violates the Due Process Clause of the Fourteenth Amendment.”  State v. Pomianek, 221 N.J. 66, 92, 110 A. 3d 841, 856 (2015).  The Court concluded that this provision “fail[ed] to give adequate notice of conduct that it proscribes, the statute is unconstitutionally vague and violates notions of due process protected  by the Fourteenth Amendment.”   State v. Pomianek, 221 N.J. 66, 91, 110 A. 3d 841, 855 – 56 (2015).

However, the New Jersey Supreme Court emphasized that “the twin pillars of the bias-intimidation statute—subsections (a)(1) and (a)(2) of N.J.S.A. 2C:16–1—still stand. A defendant is prohibited from acting with the purpose to commit bias intimidation or with knowledge that his conduct constitutes bias intimidation.” State v. Pomianek, 221 N.J. 66, 91 – 92, 110 A. 3d 841, 856 (2015).   These “twin pillars” proscribe commission of one of the enumerated crimes either:

“(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or

(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.”

The upshot of  Pomianek was that “[w]ith the striking of subsection (a)(3), New Jersey’s bias-intimidation law now conforms to its original form, the statute’s explanatory statement contained in the legislative history, the laws of the rest of the nation, and the United States Constitution.”  State v. Pomianek, 221 N.J. 66, 92, 110 A. 3d 841, 856 (2015).

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