On June 11, 1993, the United State Supreme Court upheld Wisconsin¹s
penalty
enhancement law, which imposes harsher sentences on criminals
who
³intentionally 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.²
Chief
Justice Rehnquist
deliverd 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 ³Mississippi Burning², 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 ³hyped
up to move on
some white people². When the white boy
approached
Mitchell said,
³You all want to fuck somebody up? There
goes a white
boy, Go get him.²
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 Court¹s 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 Rehnquist¹s 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.
³Congress 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.²
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,
³violates the
First Amendment directly by punishing what the
legislature has
deemed offensive thought.² The Wisconsin
Court also
rejected the
state¹s argument ³that the statute punishes only the
Œconduct¹ of
intentional selection of a victim². The
Court¹s
contention was
that ³the statute punishes the Œbecause of¹ aspect of
the defendant¹s
selection, the reason the defendant
selected the
victim, the
motive behind the selection.² The law is in fact a
direct violation
of the First Amendment, according to the Wisconsin
Supreme Court,
which said ³the Wisconsin legislature cannot
criminalize
bigoted thought with which it disagrees.²
³If 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
disagreeable². 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, Mitchell¹s 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
state¹s power to
punish the action
does not remove the constitutional barrier to
punishing the
criminal¹s 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 Court¹s
majority opinion
in Wooley v. Maynard, a 1977 case, ³At 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 one¹s beliefs should be
shaped by his
mind and his conscience rather than coerced by the
state.²
Another componet of Mitchell¹s First
Amendment argument against the
penalty
enhancement law, was that the statute was overbroad, and might
have a ³chilling
effect² 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 ³laws 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 ideas².
Chief Justice Rehnquist, however,
rejects the notion that the
Wisconsin statute
could have a chilling effect on speech.
³We 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 victim¹s protected
status, thus
qualifying him for penalty enhancement... This is too
speculative a
hypothesis to support Mitchell¹s overbreadth claim.²
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 criminal¹s 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 Wisconsin¹s, 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
³political correctness² differs only slightly from
the Red Scare of
the 1950¹s. 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.
Mitchell¹s second constitutional
argument is that the statute
violates the
Foruteenth Amendment as well as the First.
The
Foruteenth
Amendment contains the ³equal protection clause², which
states that no
state shall ³deny to any person within its jurisdiction
the equal
protection of the laws². The Wisconsin
statute punishes
offenders more
seriously because of the views they express, and
punishes more
leniently those whose motives are of an ³acceptable²
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, ³The First
Amendment... does not prohibit the
evidentiary use
of speech to establish the elements of a crime and to
prove motive or
intent². 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
³Traditionally, 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
defendant¹s motive for committing the offense is one
important
factor.²
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 Wisconsin¹s
penalty
enhancement statute, we need only examine Texas v. Johnson, a
1989 Supreme
Court case. The state¹s 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
Wisconsin¹s 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
individual¹s
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 Wisconsin¹s
position than
there are that support Mitchell¹s argument.
However,
many of these
rulings are of questionable constitutionality
themselves. Two cases arguably support Rehnquist¹s 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
³fighting words doctrine². Chaplinsky
was a Jehova¹s
Witness in a
predominantly Catholic town. He
distributed leaflets to
a hostile crowd,
and was refused protection by the town¹s marshall.
Chaplinsky then
referred to the marshall as a ³god damn racketeer and
a damn
fascist², for which he was convicted of
breaching the peace.
Justice Murphy¹s
opinion argued that certain speech, including that
which is lewd,
obscene, profane, or insulting, is not covered by the
First Amendment.
According to Murphy, ³There 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
Œfighting¹ words-
those which by their very utterance inflict injury
or tend to incite
an immediate breach of the peace.²
Under Chaplinky, bigoted remarks would
probably qualify as Œfighting¹
words. However, the courts have generally been
reluctant to uphold
the
Œfighting¹words doctrine, and the Supreme Court has never done so
(Gellman
369,370). Even if today¹s Court were to
consider Chaplinsky
valid, Mitchell¹s
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
Wisconsin¹s, 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. O¹Brien.
O¹Brien
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 O¹Brien, the government may
regulate conduct which incidentally
infringes upon
First Amendment rights, as long as the government
interest is
³unrelated to the suppression² 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
O¹Brien, would be
that it actually
supports an argument against the Court¹s ruling in
WIsconsin, and is
not a precedent to support Rehnquist¹s 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
³resentment²
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, ³If a hate speech law that enumerated
some categories
is invalid because, in Justice Antonin Scalia¹s
opinion in St.
Paul, Œgovernment may not regulate use based on
hostility- or
favoritism- toward the underlying message involved,¹ 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?²
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.
³To be consistent, legislature¹s must
now include other categories,
including sex,
physical characteristics, age, party affiliation,
anti-Americanism
or position on abortion.²(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 O¹Connor join.
White writes, ³Although 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...²
Rehnquist argues that whereas the
³ordinance struck down in R.A.V.
was explicitly
directed at expression, the statute in this case is
aimed at conduct
unprotected by the First Amendment².
Nevertheless,
had Mitchell not
stated, ³There goes a white boy; go get him², 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 homophobics. There are much
broader
costs to society
than the quieted opinions of an ignorant few.
First, laws which
chill thought or limit expression ³detract from the
goal of insuring
the availability of the broadest possible range of
ideas and
expressions in the marketplace of ideas.²
Second, the
Mitchell ruling
not only affects eveyone¹s 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 society¹s weakness
(Gellman,
(381-385).
The United States Supreme Court¹s
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 Œfighting words doctrine¹, 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.
³The 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.
³If 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...² -Justice Jackson in W.V. Board of
Education. v.
Barnette
Bibliography
Cacas,
Samuel. ³Hate Crime Sentences Can Now Be
Enhanced Under A New
Federal
Law.² Human Rights 22 (1995): 32-33
Feingold,
Stanley. ³Hate Crime Legislation Muzzles
Free Speech.² The
National Law Journal 15 (July 1, 1993): 6, 16
Gellman,
Susan. ³Sticks And Stones.² UCLA Law Review 39 (December,
1991): 333-396
Chaplinsky v. New
Hampshire
R.A.V. v. St.
Paul
Texas v. Johnson
U.S. v. O¹Brien
Wisconsin v.
Mitchell
Wooley v. Maynard
W.V. State Board
of Education v. Barnette
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