Federal appeals panel: Judge right to consider racist remarks in deciding sentence

Tuesday, October 17, 2000

An Illinois judge did not violate the First Amendment when he considered a defendant's racist remarks before issuing the maximum possible sentence, a federal appeals court panel has ruled.

In 1993, Amyn Kapadia and another man burglarized and set fire to the Friends of Refugees of Eastern Europe Center, a Jewish Orthodox organization that provided services to recent Russian Jewish immigrants.

Criminal trial court Judge Thomas Durkin found Kapadia guilty on burglary and arson charges and set a date for sentencing. On his way out of the courtroom, Kapadia muttered several anti-Semitic remarks to a courtroom deputy, including:

“You can tell the judge for me … that he's a b—- and f— the Jews.”

“Those f—— Jews.”

“F—— Jews, man.”

Subsequently, Durkin sentenced Kapadia to 14 years in prison — the maximum possible sentence for the charges. Durkin cited Kapadia's slurs in making his sentencing determination, saying:

“What troubles me, of course, is the vitriol directed towards the group that also happens to be the victims. … I did take the comments into consideration because one of the things I have to consider is the possibility of reformation of the defendant.

“I take these matters into very, very serious consideration in the case of Mr. Kapadia, therefore, because his virulent anti-Semitism is indicative of the fact he is not likely to change his ways.”

Kapadia appealed his sentence in state courts to no avail. In December 1996, he filed a petition for relief in a federal district court. Kapadia argued that Durkin had improperly enhanced his sentence based on remarks that weren't directly linked to his crime, thereby punishing him for unpopular beliefs.

In August 1997, a federal district court rejected his petition. In March 1998 Kapadia appealed to the 7th U.S. Circuit Court of Appeals. Last week, a three-judge panel of the 7th Circuit rejected his petition in Kapadia v. Tally.

The state argued that Kapadia's racist speech was tied to his burglarizing and burning of a Jewish community center and could, therefore, be used to enhance his sentence.

The appeals court panel cited several U.S. Supreme Court decisions including the 1983 decision Barclay v. Florida and the 1992 decision Dawson v. Delaware.

In Barclay, the high court ruled that it was permissible for the trial court to take into account a criminal defendant's membership in the Black Libertarian army in enhancing his capital murder sentence. The high court noted that the defendant had murdered a white man and put a racist note on the victim's body.

However, in the Dawson decision, the high court ruled that a trial judge violated the First Amendment rights of a capital murder defendant when the judge allowed a jury to consider the defendant's prison membership in the Aryan Brotherhood during its death-penalty determination. The high court distinguished the case from Barclay, noting that the Dawson defendant's membership in a white racist group was unrelated to his crime — the murder of a white woman.

Kapadia argued that his case was more similar to Dawson than to Barclay. But the 7th Circuit panel determined that the judge could properly consider Kapadia's slurs because they were closely related to his crime.

“He did not burglarize and set fire to a Wal-Mart, for example, or some other business with no particular affiliation, and then utter anti-Semitic slurs,” the panel wrote in its Oct. 12 ruling. “The First Amendment does not bar consideration of these statements at sentencing when they are indicative of motive and future dangerousness.”

The panel concluded: “Because the sentencing court was not punishing Kapadia for his abstract belief but rather for his concrete application of those misguided beliefs in criminal activity, we affirm the judgment of the district court.”

Assistant Public Defender James S. Jacobs, Kapadia's attorney, said although he disagreed with the panel, he would not appeal its decision.

“The court's analysis overlooked the fact that the state courts aggravated his (Kapadia's) sentence based on a finding that his crime was religiously motivated,” Jacobs said. “Kapadia was not charged with a hate crime. Therefore, he was punished for his abstract beliefs in violation of the First Amendment.”

Calls to the Illinois attorney general's office were not returned.

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