Penalty For Bias-Motivated Crimes Essay, Research Paper

On June 11, 1993, the United State Supreme Court upheld

Wisconsin’s penalty enhancement law, which imposes harsher sentences

on criminals who “intentionally select the person against whom the

crime…is committed..because of the race, religion, color,

disability, sexual orientation, national origin or ancestry of that

person.” Chief Justice Rehnquist delivered the opinion of the

unanimous Court. This paper argues against the decision, and will

attempt to prove the unconstitutionality of such penalty enhancement

laws.

On the evening of October 7, 1989, Mitchell and a group of

young black men attacked and severely beat a lone white boy. The

group had just finished watching the film “Mississippi Burning”, in

which a young black boy was, while praying, beaten by a white man.

After the film, the group moved outside and Mitchell asked if they

felt “hyped up to move on some white people”. When the white boy

approached Mitchell said, “You all want to fuck somebody up? There

goes a white boy, Go get him.” The boy was left unconscious, and

remained in a coma for four days. Mitchell was convicted of aggravated

battery, which carries a two year maximum sentence. The Wisconsin

jury, however, found that because Mitchell selected his victim based

on race, the penalty enhancement law allowed Mitchell to be sentenced

to up to seven years. The jury sentenced Mitchell to four years, twice

the maximum for the crime he committed without the penalty enhancement

law.

The U.S. Supreme Court?s ruling was faulty, and defied a

number of precedents. The Wisconsin law is unconstitutional, and is

essentially unenforceable. This paper primarily focuses on the

constitutional arguments against Chief Justice Rehnquist?s decision

and the statute itself, but will also consider the practical

implications of the Wisconsin law, as well as a similar law passed

under the new federal crime bill (Cacas, 32). The Wisconsin law and

the new federal law are based on a model created by the Anti-

Defemation League in response to a rising tide of hate-related violent

crimes (Cacas, 33). Figures released by the Federal Bureau of

Investigation show that 7,684 hate crimes motivated by race, religion,

ethnicity, and sexual orientation were reported in 1993, up from 6,623

the previous year. Of those crimes in 1993, 62 percent were racially

motivated (Cacas, 32). Certainly, this is a problem the nation must

address. Unfortunately, the Supreme Court of the United States and

both the Wisconsin and federal governments have chosen to address this

problem in a way that is grossly unconstitutional.

“Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise therof; or abridging the

freedom of speech, or of the press; or the right of the people to

peaceably assemble, and to petition the government for a redress

of grievances.”

The most obvious arguments against the Mitchell decision are

those dealing with the First Amendment. In fact, the Wisconsin

Supreme Court ruled that the state statute was unconstitutional in

their decision, which the U.S. Supreme Court overruled. The Wisconsim

Supreme Court argued that the Wisconsin penalty enhancement statute,

“violates the First Amendment directly by punishing what the

legislature has deemed offensive thought.” The Wisconsin Court also

rejected the state’s argument “that the statute punishes only the

conduct of intentional selection of a victim”. The Court’s contention

was that “the statute punishes the because of aspect of the

defendant?s selection, the reason the defendant selected the victim,

the motive behind the selection.”

The law is in fact a direct violation of the First Amendment,

according to the Wisconsin Supreme Court, which said “the

Wisconsin legislature cannot criminalize bigoted thought with which it

disagrees.”

“If there is a bedrock principal underlying the First

Amendment, it is that the government may not prohibit the expression

of an idea simply because society finds the idea itself offensive or

disagreeable”. The Supreme Court was heard to utter such noble phrases

as recently as 1989, in Texas v. Johnson. Unfortunately these

idealistic principles seem to have been abandoned during Wisconsin v.

Mitchell.

Clearly, Mitchell’s act of assaulting another human is a

punishable crime, and no one could logiacally argue that the First

Amendment protects this clearly criminal action. However, the state?s

power to punish the action does not remove the constitutional barrier

to punishing the criminal?s thoughts (Cacas, 337). The First Amendment

has generally been interpreted to protect the thoughts, as well as the

speech, of an individual (Cacas, 338). According to the Court?s

majority opinion in Wooley v. Maynard, a 1977 case, “At the heart of

the First Amendment is the notion that an individual should be free to

believe as he will, and that in a free society one?s beliefs should be

shaped by his mind and his conscience rather than coerced by the

state.”

Another componet of Mitchell’s First Amendment argument

against the penalty enhancement law, was that the statute was

overbroad, and might have a “chilling effect” on free speech. Mitchell

contended that with such a penalty enhancement law, many citizens

would be hesitant to experess their unpopular opinions, for fear that

those opinions would be used against them in the future.

In Abrams v. United States, Justice Holmes, in his dissent,

argued that “laws which limit or chill thought and expression detract

from the goal of insuring the availability of the broadest possible

range of ideas and expression in the marketplace of ideas”.

Chief Justice Rehnquist, however, rejects the notion that the

Wisconsin statute could have a chilling effect on speech. “We must

conjure up a vision of a Wisconsin citizen suppressing his unpopular

bigoted opinions for fear that if he later commits an offense covered

by the statute, these opinions will be offered at trial to establish

that he selected his victim on account of the victim?s protected

status, thus qualifying him for penalty enhancement… This is too

speculative a hypothesis to support Mitchell?s overbreadth claim.?

However, a legitimate argument certainly exists that the logical next

step would be to examine the conversations, correspondence, and other

expressions of the accused person to determine whether a hate motive

prompted the crime, if a criminal?s sentence is being considered for

penalty enhancement (Feingold, 16). How can Rehnquist argue that this

will not cause a chilling effect?

Rehnquist denies this chilling effect exists under penalty

enhancement laws such as Wisconsin?s, but one must consider how

Rehnquist would rule if the penalty enhancement did not cover

something, such as racism, that he finds personally repugnant. The

recent attempt at ?political correctness? differs only slightly from

the Red Scare of the 1950?s. The anti-communists claimed and the

politically correct ideologists claim to have good intentions (The

Road to Hell…).Unfortunately, these two groups infringed upon the

rights of the minority in their quest to mold the htoughts of others

into ideas similar to their own.

How would Rehnquist rule if the statute called for enhanced

penalties for persons convicted of crimes while expressing Communist

ideas? Or what if the criminal was Mormon, and the majority found

those religious views morally repugnant? Could Rehnquist also justify

suppressing the religious freedoms found in the First Amendment, as

well as its free speech clause, if they were found to be as

reprehensible as racism by the general public? The United States

Supreme Court is granting selective protection of First Amendment

rights, in Mitchell v. Wisoconsin, and is yielding to political

pressure to suppress bigoted views.

Mitchell?s second constitutional argument is that the statute

violates the Foruteenth Amendment as well as the First. The

Fourteenth Amendment contains the “equal protection clause”, which

states that no state shall “deny to any person within its jurisdiction

the equal protection of the laws”. The Wisconsin statute punishes

offenders more seriously because of the views they express, and

punishes more leniently those whose motives are of an “acceptable”

nature (Gellman, 379). This seems to be a clear violation of the

Fourteenth Amendment, but again, Rehnquist (and the entire Supreme

Court), sees things quite diiferently.

Rehnquist argues that, “The First Amendment… does not

prohibit the evidentiary use of speech to establish the elements of a

crime and to prove motive or intent”. Motive, however, is used to

establish guilt or innocence, and is not in itself a crime.

Undeniably, however, those that express bigoted views are punished

more severely than those who do not.

Rehnquist, however, never specifically mentions the Fourteenth

Amendmeent because they were not developed by Mitchell and fell

outside of the question on which the Court granted certiorari.

Rehnquist also argues that “Traditionally, sentencing judges

have considered a wide variety of factors in addition to evidence

bearing on guilt in determining what sentences to impose on a

convicted defendant… The defendant?s motive for committing the

offense is one important factor.”

This is a compelling argument, but I would argue this practice

is itself of questionable constitutionality, in that it allows the

sentencing judge to exercise excessive discretionary judgement based

on his view as to what constitutes acceptable and unacceptable

motives. However, even if this practice is held to be constitutional,

surpassing the existing maximum penalty with an additional statute

that specifically lists bigotry as an unacceptable motive, certainly

qualifies as being the same as imposing an additional penalty for

unpopular beliefs.

To illuatrate the dangers inherent in laws such as Wisconsin?s

penalty enhancement statute, we need only examine Texas v. Johnson, a

1989 Supreme Court case. The state?s flag desecration statute was

ruled unconstitutional by the Court. However, using Rehnquists logic

in Mitchell, the state of Texas could have easily achieved their goal

by prohibiting public burning, a legitimate exercise of their police

power, and enhancing the penalty for those convicted of violating the

statute if they did so in in opposition to the government (Gellman,

380). Therefore, penalty enhancement laws such as Wisconsin?s give the

government too much power to excessively punish what it deems

unacceptable.

Clearly, when the legislature enacts penalty enhancement laws

with the intent of suppressing unpopular ideas, the state violates

both the First and the Fouteenth Amendments. The state interferes with

an individual?s right to free speech by suppressing ideas not

supported by the government, and fails to provide equal protection to

all its citizens when it punishes an act more severely when committed

by an individual whose opinions are not shared by the state. Mitchell

v. Wisconsin is a clear example of majority will infringing upon

minority rights, and proves that the Bill of Rights works well, except

in the instances when it is most needed.

There are probably more Supreme Court cases that favor

Wisconsin?s position than there are that support Mitchell?s argument.

However, many of these rulings are of questionable constitutionality

themselves. Two cases arguably support Rehnquist?s position, but the

Supreme Court has traditionally ignored the first of rulings, and the

second has been misinterpreted.

In Chaplinsky v. New Hampshire, Justice Murphy wrote what has

become known as the “fighting words doctrine”. Chaplinsky was a

Jehova?s Witness in a predominantly Catholic town. He distributed

leaflets to a hostile crowd, and was refused protection by the town?s

marshall. Chaplinsky then referred to the marshall as a “god damn

racketeer and a damn fascist”, for which he was convicted of breaching

the peace. Justice Murphy?s opinion argued that certain speech,

including that which is lewd, obscene, profane, or insulting, is not

covered by the First Amendment.

According to Murphy, “There are certain well-defined and

narrowly limited classes of speech, the prevention and punishment of

which has never been thought to raise any Constitutional problem.

These include the lewd and obscene, the profane, the libelous, and the

insulting or fighting? words- those which by their very utterance

inflict injury or tend to incite an immediate breach of the peace.”

Under Chaplinky, bigoted remarks would probably qualify as

fighting words. However, the courts have generally been reluctant

to uphold the fighting-words doctrine, and the Supreme Court has never

done so (Gellman 369,370). Even if today?s Court were to consider

Chaplinsky valid, Mitchell?s comments, though racial in nature, would

be difficult to classify as bigoted. In fact, Constitutional

considerations aside, the biggest problem with penalty enhancement

laws such as Wisconsin?s, is classifying and prosecuting an incident

as hate-motivated (Cacas, 33). At what point can we be certain the

victim was selected based on race, religion, or sexual orientation?

Another more pressing problem is police unwillingness to investigate a

crime as hate-motivated (Cacas, 33). Certainly, the difficulting in

determining whether a crime is hate-motivated is one of the reasons

police are hesitant to pursue crimes as hate-motivated, and

illustrates yet another reason why such statutes should not exist.

Consider the following FBI guidelines to help determine whether a

crime is hate-motivated (Cacas, 33):

1. a substantial portion of the community where the crime occurred

perceives that the incident was bias-motivated;

2. the suspect was previously involved in a hate crime; and

3. the incident coincided with a holiday relating to, or a date of

particular significance to, a racial, religious, or ethnic/national

origin group These guidelines certainly fail to offer any exact or

definitive system with which to classify crimes as hate-motivated.

Another case which is cometimes cited as a precedent to

support rulings such as Wisconsin v. Mitchell, is U.S. v. O?Brien.

O?Brien had burnt his draft card to protest the draft and the Vietnam

War, despite a law specifically forbidding the burning of draft cards.

The Supreme Court ruled that the statute did not differentiate

between public and private draft card burnings, and was therefore

not a government attempt to regulate symbolic speech, but a

constitutionality legitimate police power. The Court ruled that there

is no absolutist protection for symbolic speech.

Under O?Brien, the government may regulate conduct which

incidentally infringes upon First Amendment rights, as long as the

government interest is ?unrelated to the suppression? of belief or

expression. However, when states enact laws such as the Wisconsin

statute, the state is not regulating conduct despite its expressive

elements, but is penalizing conduct because of its expressive elements

(Gellman, 376). Therefore, a more accurate interpretation of O?Brien,

would be that it actually supports an argument against the Court?s

ruling in WIsconsin, and is not a precedent to support Rehnquist?s

decision.

Possibly more important, and certainly more recent, is the

precedent established in R.A.V. v. St. Paul, a 1992 case. This case

involved a juvenille who was convicted under the St. Paul

Bias-Motivated Crime Ordinance for burning a cross in the yard of a

black family that lived across the street from the petitioner. Justice

Scalia delivered the opinion of a unanimous Court, but the Court was

divided in its opinions for overturning the St. Paul statute.

Scalia argued that the city ordinance was overbroad, because

it punished nearly all controversial characterizations likely to

arouse “resentment” among defined protected groups, and

under-inclusive, because the government must not selectively penalize

fighting words directed at some groups while not prosecuting those

addressed to others, which is where the problem lies in the logic of

the Mitchell decision. Though Rehnquist argued that Wisconsin v.

Mitchell did not overturn R.A.V. v. St. Paul, “If a hate speech law

that enumerated some categories is invalid because, in Justice Antonin

Scalia?s opinion in St. Paul, government may not regulate use based on

hostility- or favoritism- toward the underlying message involved,? how

can a hate crime law be upheld that increases the penalty for crimes

motivated by some hates but not those motivated by other hates?” In

other words, if the St. Paul statute is determined to be

under-inclusive, how can we include every conceivable hate within the

context of any statute.

“To be consistent, legislature?s must now include other

categories, including sex, physical characteristics, age, party

affiliation, anti-Americanism or position on abortion.”(Feingeld, 16)

More interesting (and Constitutional) than the majority

opinion in R.A.V. v. St. Paul, is the concurring opinion written by

Justice White, with whom Justice Blackmun and Justice O?Connor join.

White writes, “Although the ordinance as construed reaches

egories of speech that are constitutionally unprotected, it also

criminalizes a substantial amount of expression that- however

repugnant- is shielded by the First Admendment… Our fighting words

cases have made clear, however, that such generalized reactions are

not sufficient to strip expression of its constitutional protection.

The mere fact that expressive activity causes hurt feelings, offense,

or resentment does not render the expression unprotected… The

ordinance is therefore fatally overbroad and invalid on its face…”

Rehnquist argues that whereas the “ordinance struck down in

R.A.V. was explicitly directed at expression, the statute in this case

is aimed at conduct unprotected by the First Amendment”. Nevertheless,

had Mitchell not stated, ?There goes a white boy; go get him, his

sentence would not have been enhanced, he would have instead received

the maximum sentence of two years in jail for his crime, instead of

four. Therefore, the Wisconsin statute does not only punish conduct,

as Justice Rehnquist suggests, but speech as well.

The Wisconsin v. Mitchell decision cannot simply be viewed as

one that does harm to racists and homophobiacs. There are much broader

costs to society than the quieted opinions of an ignorant few.

First, laws which chill thought or limit expression “detract

from the goal of insuring the availability of the broadest possible

range of ideas and expressions in the marketplace of ideas.” Second,

the Mitchell ruling not only affects eveyone?s free speech rights with

a general constriction of the interpretation of the First Amendment,

but the ruling makes way for further constrictions. Third, penalty

enhancement laws place the legislature in the position of judging and

determining the quality of ideas, and assumes that the government has

the capacity to make such judgements. Fourth, without the expression

of opinions generally deemd unacceptable by society, society tends to

forget why those opinions were deemed unacceptable in the first place.

(More specifically, nothing makes a skinhead seem more stupid than

allowing him to voice his opinion under the scrutiny of a national

television audience.) Finally, when society allows the free expression

of all ideas, regardless of its disdain for those ideas, it is a sign

of strength. So when a society uses all its power to suppress ideas,

it is certainly a sign of that society?s weakness (Gellman, (381-385).

The United States Supreme Court?s unanimous decision in

Wisconsin v. Mitchell is incorrect for a number of reasons.

Constitutionally, the decision fails to comply with the freedom of

speech guaranteed in the First Amendment, and the guarantee to all

citizens of equal protection under the laws, listed in the Fourteenth

Amendment. The decision also arguably overturns R.A.V. v. St. Paul,

and suggests that the Court may be leaning towards a new fighting

words doctrine?, where unpopular speech equals unprotected speech. The

decision also damages societ as a whole in ways that are simply

immeasureable in their size, such as those listed in the preceding

paragraph. Wisconsin v. Mitchell is a terribly flawed Supreme Court

decision, which one can only hope will be overturned in the very near

future.

“The freedom to differ is not limited to things that do not

matter much. That would be a mere sahdow of a freedom. The test of its

substance is the right to differ as to things that touch the heart of

the existing order.

“If there is any fixed star in our constitutional

constellation, it is that no official, high or petty, can prescribe

what shall be orthodox in politics, nationalism, religion or other

matters of opinion…”

-Justice Jackson in W.V. Board of Education. v. Barnette

—

Bibliography

Cacas, Samuel. “Hate Crime Sentences Can Now Be Enhanced Under A New

Federal Law.” Human Rights 22 (1995): 32-33

Feingold, Stanley. “Hate Crime Legislation Muzzles Free Speech.” The

National Law Journal 15 (July 1, 1993): 6, 16

Gellman, Susan. “Sticks And Stones.” UCLA Law Review 39 (December,

1991): 333-396

Chaplinsky v. New Hampshire

R.A.V. v. St. Paul

Texas v. Johnson

U.S. v. O?Brien

Wisconsin v. Mitchell

Wooley v. Maynard

W.V. State Board of Education v. Barnette