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Wisconsin v. Mitchell

A FEW OPINIONS ON SENTENCING ENHANCEMENT FOR HATE CRIMES

Virginia v Black (2002 cross burning case)

This opinion is an edited version of the Wisconsin Supreme Court's decision [ 485 NW2d 807 (1992)]. The U.S. Supreme Court unanimously overturned this ruling and declared sentencing enhancements for bias motivated crime to be constitutional. The Wisconsin court decision is thus not the law of the land, but it is reproduced here because its three separate opinions provide an excellent vehicle for understanding the hate crime debate. (Original footnote numbers retained; the version reprinted in Criminal Justice Ethics contains additional explanatory footnotes and references to law review articles.)

CJ Ethics: more Hate Crime info

StopViolence: Hate Crimes

HEFFERNAN, CHIEF JUSTICE ( for the Majority)

ABRAHAMSON, JUSTICE
(DISSENTING)

BABLITCH, JUSTICE (DISSENTING)

Intro & Facts

OPINION: Bigots are free to think and express themselves as they wish, except that they may not engage in criminal conduct in furtherance of their beliefs. The statute ties discriminatory selection of a victim to conduct already punishable in a sufficiently tight nexus to prevent erosion of First Amendment protection of bigoted speech and ideas. OPINION: The Constitution does not protect discrimination in the selection of a victim for hiring or firing, and it does not protect discrimination in the selection of a victim for criminal activity. The penalty enhancer statute punishes more severely criminals who act with what the legislature has determined is a more depraved, antisocial intent.
OPINION: The hate crimes statute enhances the punishment of bigoted criminals because they are bigoted. The statute is directed solely at the subjective motivation of the actor - his or her prejudice. Punishment of one's thought, however repugnant the thought, is unconstitutional. 

HEFFERNAN, CHIEF JUSTICE for the Majority: The First Amendment of the United States Constitution states bluntly: "Congress shall make no law ... abridging the freedom of speech." The First Amendment protects not only speech but thought as well. "[A]t 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." Even more fundamentally, the constitution protects all speech and thought, regardless of how offensive it may be. "[I]f there is a bedrock principle 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." Texas v. Johnson (1989). As Justice Holmes put it: "If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought - not free thought for those who agree with us but freedom for the thought we hate." [NOTE 8]

Without doubt the hate crimes statute punishes bigoted thought. The state asserts that the statute punishes only the "conduct" of intentional selection of a victim. We disagree. Selection of a victim is an element of the underlying offense, part of the defendant's "intent" in committing the crime. In any assault upon an individual there is a selection of the victim. The statute punishes the "because of' aspect of the defendant's selection, the reason the defendant selected the victim, the motive behind the selection.

NOTE 8: As was said in a statement attributed to Voltaire, surely one of the philosophical ancestors of our American constitution: "I disapprove of what you say but I will defend to the death your right to say it."

Construing the model hate crimes statute designed by the Anti-Defamation League of B'nai B'rith (ADL), upon which the Wisconsin hate crimes statute is apparently loosely based, one author provides the following insightful analysis:

Under the ADL model, a charge of ethnic intimidation must always be predicated on certain offenses proscribed elsewhere in a state's criminal code. As those offenses are already punishable, all that remains is an additional penalty for the actor's reasons for his or her actions. The model statute does not address effects, state of mind, or a change in the character of the offense, but only the thoughts and ideas that propelled the actor to act. The government could not, of course, punish these thoughts and ideas independently. That they are held by one who commits a crime because of his or her beliefs does not remove this constitutional shield. Of course, the First Amendment protection guaranteed the actor's thoughts does not protect him or her from prosecution for the associated action. Neither, however, does the state's power to punish the action remove the constitutional barrier to punishing the thoughts.

Because all of the crimes under chs. 939 to 948, Stats., are already punishable, all that remains is an additional punishment for the defendant's motive in selecting the victim. The punishment of the defendant's bigoted motive by the hate crimes statute directly implicates and encroaches upon First Amendment rights. 

While the statute does not specifically phrase the "because of... race, religion, color, [etc.]" element in terms of bias or prejudice, it is clear from the history of anti-bias statutes, detailed above, that sec. 939.645, Stats., is expressly aimed at the bigoted bias of the actor. Merely because the statute refers in a literal sense to the intentional "conduct" of selecting, does not mean the court must turn a blind eye to the intent and practical effect of the law - punishment of offensive motive or thought. [NOTE 11] The conduct of "selecting" is not akin to the conduct of assaulting, burglarizing, murdering and other criminal conduct. It cannot be objectively established. Rather, an examination of the intentional "selection" of a victim necessarily requires a subjective examination of the actor's motive or reason for singling out the particular person against whom he or she commits a crime.

In this case, Todd Mitchell selected Gregory Reddick because Reddick is white. Mitchell is black. The circumstantial evidence relied upon to prove that Mitchell selected Reddick "because" Reddick is white included Mitchell's speech - "Do you all feel hyped up to move on some white people?" - and his recent discussion with other black youths of a racially charged scene from the movie "Mississippi Burning." This evidence was used not merely to show the intentional selection of the victim, but was used to prove Mitchell's bigoted bias. The physical assault of Reddick is the same whether he was attacked because of his skin color or because he was wearing "British Knight" tennis shoes. Mitchell's bigoted motivation for selecting Reddick, his thought which impelled him to act, is the reason that his punishment was enhanced. In Mitchell's case, that motivation was apparently a hatred of whites.

The statute commendably is designed to punish - and thereby deter - racism and other objectionable biases, but deplorably unconstitutionally infringes upon free speech. The state would justify its transgression against the constitutional right of freedom of speech and thought because its motive is a good one, but the magnitude of the proposed incursion against the constitutional rights of all of us should no more be diminished for that good motive than should a crime be enhanced by a separate penalty because of a criminal's bad motive.

NOTE 11 There seems to be considerable confusion regarding the meaning and effect of "motive" in criminal law. As Black's Law Dictionary 810 (6th ed. 1990) states in its definition of "intent":

Intent and motive should not be confused. Motive is what prompts a person to act, or fail to act. Intent refers only to the state of mind with which the act is done or omitted.

This confusion is manifested clearly in the dissenting opinion of justice Bablitch, which correctly defines "intentionally" at p. 826 as "a purpose to do the thing or cause the result specified," correctly recognizes at pp. 821-822 n. 2 that the term "because of" implicates an actor's motive, and somehow concludes that the hate crimes statute involves ordinary criminal intent.

In this case the crime was aggravated battery, and the necessary intent under sec. 940.19(1m), is an "intent
to cause great bodily harm." Quite clearly, Mitchell's intent to cause great bodily harm to Reddick is distinct from his motive or reason for doing so. Criminal law is not concerned with a person's reasons for committing crimes, but rather with the actor's intent or purpose in doing so.

As explained by Professor Gellman:

"Motive," "intent," and "purpose" are related concepts in that they all refer to thought processes. They are legally distinct in crucial respects, however. Motive is nothing more than an actor's reason for acting, the "why" as opposed to the "what" of conduct. Unlike purpose or intent, motive cannot be a criminal offense or an element of an offense .....

The distinction becomes more clear upon consideration of the effect of altering the intent or purpose on the legal characterization of the same conduct, as compared to the effect (or lack thereof of altering the motive.

Continuing with the example of burglary, changing the purpose of the break-in changes the very nature of the act: if A broke into B's house for die purpose of getting A's own property (not a criminal purpose), the act of breaking in is simply breaking and entering or trespass, not burglary, even if A's motive was identical (the desire to pay his debts). By contrast, changing A's motives, even to more sympathetic ones (say, the desire to buy a house for the homeless), while his purpose was that of committing the crime of theft in B's house, does not change the nature of the act: it is still burglary. 

While the state speaks of the "intentional" aspect of the hate crimes statute, when the focus is on the "selects ... because of' aspect of the law, it becomes clear that it is the actor's motive which is targeted and punished by the statute.

Additional info on intent and mens rea

The state admits that this case involves legislation that seeks to address bias related crime. The only definition of "bias" relevant to this case is "prejudice." A statute specifically designed to punish personal prejudice impermissibly infringes upon an individual's First Amendment rights, no matter how carefully or cleverly one words the statute. The hate crimes statute enhances the punishment of bigoted criminals because they are bigoted. The statute is directed solely at the subjective motivation of the actor - his or her prejudice. Punishment of one's thought, however repugnant the thought, is unconstitutional. 

In R.A.V. the United States Supreme Court held that a Minnesota ordinance prohibiting bias-motivated disorderly conduct was facially invalid under the First Amendment. Accepting the Minnesota Supreme Court's determination that the ordinance reached only expressions that constituted "fighting words" within the meaning of Chaplinsky, the Court held that the government may not constitutionally regulate even otherwise unprotected speech on the basis of hostility towards the idea expressed by the speaker. In other words, while the government may regulate all fighting words, it may not regulate only those fighting words with which it disagrees. Such a prohibition is nothing more than a governmental attempt to silence speech on the basis of its content.

While the St. Paul ordinance invalidated in R.A.V. is clearly distinguishable from the hate crimes statute in that it regulates fighting words rather than merely the actor's biased motive, the Court's analysis lends support to our conclusion that the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees. The Court stated:

[T]he only interest distinctively served by the content limitation is that of displaying the city council's special hostility towards the particular biases thus singled out. That is precisely what the First Amendment forbids. The politicians of St. Paul are entitled to express that hostility but not through the means of imposing unique limitations upon speakers who (however benightedly) disagree.

The ideological content of the thought targeted by the hate crimes statute is identical to that targeted by the St. Paul ordinance - racial or other discriminatory animus. And, like the United States Supreme Court, we conclude that the legislature may not single out and punish that ideological content.

Thus, the hate crimes statute is facially invalid because it directly punishes a defendant's constitutionally protected thought. [NOTE 17]

The hate crimes statute is also unconstitutionally overbroad. A statute is overbroad when it intrudes upon a substantial amount of constitutionally protected activity. Aside from punishing thought, the hate crimes statute also threatens to directly punish an individual's speech and assuredly will have a chilling effect upon free speech. As we explained in Bacbowski: 

A [statute] is overbroad when its language, given its normal meaning, is so sweeping that its sanctions may be applied to constitutionally protected conduct which the state is not permitted to regulate. The essential vice of an overbroad law is that by sweeping protected activity within its reach it deters citizens from exercising their protected constitutional freedoms, the so-called "chilling effect."

NOTE 17: The dissent of justice Bablitch asserts that punishing motive is permissible, based upon Dawson v. Delaware (1992), wherein the Supreme Court indicated that evidence of a convicted murderer's bigoted motivation in committing the murder is a relevant inquiry in sentencing. The dissent is wrong. Of course it is permissible to consider evil motive or moral turpitude when sentencing for a particular crime, but it is quite a different matter to sentence for that underlying crime and then add to that criminal sentence a separate enhancer that is directed solely to punish the evil motive for the crime.

The chilling effect need not be evident in the defendant's case; it is enough if hypothetical situations show that it will chill the rights of others.

The state admits as it must that speech may often be used as circumstantial evidence to prove the actor's intentional selection. This case is a perfect example. Mitchell's speech is the primary evidence of his intentional selection of Reddick. The use of the defendant's speech, both current and past, as circumstantial evidence to prove the intentional selection, makes it apparent that the statute sweeps protected speech within its ambit and will chill free speech.

The criminal conduct involved in any crime giving rise to the hate crimes penalty enhancer is already punishable. Yet there are numerous instances where this statute can be applied to convert a misdemeanor to a felony merely because of the spoken word. For example, if A strikes B in the face he commits a criminal battery. However, should A add a word such as "nigger, "honkey," ''jew,'' "mick," "kraut," "spic,'' or "queer," the crime becomes a felony, and A will be punished not for his conduct alone - a misdemeanor - but for using the spoken word. Obviously, the state would respond that the speech is merely an indication that A intentionally selected B. because of his particular race or ethinicity, but the fact remains that the necessity to use speech to prove this intentional selection threatens to chill free speech. Opprobrious though the speech may be, an individual must be allowed to utter it without fear of punishment by the state.

And of course the chilling effect goes further than merely deterring an individual from uttering a racial epithet during a battery. Because the circumstantial evidence required to prove the intentional selection is limited only by the relevancy rules of the evidence code, the hate crimes statute will chill every kind of speech. As Professor Gellman explains:

In addition to any words that a person may speak during, just prior to, or in association with the commission of one of the underlying offenses, all of his or her remarks upon earlier occasions, any books ever read, speakers ever listened to, or associations ever held could be introduced as evidence that he or she held racist views and was acting upon them at the time of the offense. Anyone charged with one of the underlying offenses could be charged with [intentional selection] as well, and face the possibility of public scrutiny of a lifetime of everything from ethnic jokes to serious intellectual inquiry. Awareness of this possibility could lead to habitual self-censorship of expression of one's ideas, and reluctance to read or listen publicly to the ideas of others, whenever one fears that those ideas might run contrary to popular sentiment on the subject of ethnic relations.

It is no answer that one need only refrain from committing one of the underlying offenses to avoid the thought punishment. Chill of expression and inquiry by definition occurs before any offense is committed, and even if no offense is ever committed. The chilling effect thus "tends to the entire populace, not just to those who will eventually commit one of the underlying offenses. [Susan Gellman, 39 U.C.L.A. L.Rev. at 360- 61 (emphasis in original) (citations omitted).]

Thus, the hate crimes statute is unconstitutionally overbroad because it sweeps protected First Amendment speech within its reach and thereby chills free speech.

Finally, we consider the argument advanced by the amici curiae ADL, et. al., and embraced by the dissent that an analogy exists between the hate crimes statute and antidiscrimination laws, and that the numerous United States Supreme Court decisions upholding antidiscrimination laws lend support to the hate crimes statute. We disagree.

Discrimination and bigotry are not the same thing. Under antidiscrimination statutes, it is the discriminatory act which is prohibited. Under the hate crimes statute, the "selection" which is punished is not an act, it is a mental process. In this case, the act was the battery of Reddick; what was punished by the hate crimes statute was Mitchell's reason for selecting Reddick, his discriminatory motive.

As explained above, selection under the hate crimes statute is solely concerned with the subjective motivation of the actor. Prohibited acts of discrimination under Tide VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e-2, and analogous state anti-discrimination statutes, such as refusal to hire, termination, etc., involve objective acts of discrimination. What is punished by the hate crimes penalty enhancer is a subjective mental process, not an objective act. The actor's penalty is enhanced not because the actor fired the victim, terminated the victim's employment, harassed the victim, abused the victim or otherwise objectively mistreated the victim because of the victim's protected status; the penalty is enhanced because the actor subjectively selected the victim because of the victim's protected status. Selection, quite simply, is a mental process, not an objective act. [NOTE 21]

NOTE 21: The hate crimes statute does not punish the underlying criminal act, it punishes the defendant's motive for acting. Taking the dissent's explanation that the statute is concerned with the "decision" of the defendant, it is clear that the hate crimes statute creates nothing more than a thought crime. Apparently that dissent is comfortable with such an Orwellian notion; we are not.

Finally, there is a difference between the civil penalties imposed under Title VII and other antidiscrimination statutes and the criminal penalties imposed by the hate crimes law, and contrary to the dissent's protestations, it is a difference that matters. The difference is that while the First Amendment may countenance slight incursions into free speech where the overarching concern is protection from objective acts of bigotry in the employment marketplace and the adverse consequences of such acts on the civil rights of minorities, the First Amendment will not allow the outright crilminalization of subjective bigoted thought. We have little doubt that an antidiscrimination statute which crirninalized an employer's subjective discrimination, with nothing more, would be unconstitutional. This apparent schism in the First Amendment's protective shield is perhaps best understood in the context of overbreadth. A statute criminalizing the bigoted selection of a victim will chill free speech to a much greater extent than a statute imposing civil penalties for objective discriminatory acts.

In the wake of the Los Angeles riots sparked by the acquittal of four white police officers accused of illegally beating black motorist Rodney King, it is increasingly evident that racial antagonism and violence are as prevalent now as they ever have been. Indeed, added to the statistical compilation of bias related crimes could be the vicious beating of white truck driver Reginald Denny by black rioters, horrifyingly captured on film by a news helicopter. As disgraceful and deplorable as these and other hate crimes are, the personal prejudices of the attackers are protected by the First Amendment. The constitution may not embrace or encourage bigoted and hateful thoughts, but it surely protects them.

Because we wholeheartedly agree with the motivation of the legislature in its desire to suppress hate crimes, it is with great regret that we hold the hate crimes statute unconstitutional - and only because we believe that the greater evil is the suppression of freedom of speech for all of us.

HEFFERNAN, CHIEF JUSTICE ( for the Majority)

ABRAHAMSON, JUSTICE
(DISSENTING)

BABLITCH, JUSTICE (DISSENTING)

Intro & Facts

OPINION: Bigots are free to think and express themselves as they wish, except that they may not engage in criminal conduct in furtherance of their beliefs. The statute ties discriminatory selection of a victim to conduct already punishable in a sufficiently tight nexus to prevent erosion of First Amendment protection of bigoted speech and ideas. OPINION: The Constitution does not protect discrimination in the selection of a victim for hiring or firing, and it does not protect discrimination in the selection of a victim for criminal activity. The penalty enhancer statute punishes more severely criminals who act with what the legislature has determined is a more depraved, antisocial intent:
OPINION: The hate crimes statute enhances the punishment of bigoted criminals because they are bigoted. The statute is directed solely at the subjective motivation of the actor - his or her prejudice. Punishment of one's thought, however repugnant the thought, is unconstitutional. 

 

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