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Home > CJ Ethics >  Pt 2 Limits of Law  (examples)> Hate Crimes | Buy CJ Ethics

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)

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.  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:

HEFFERNAN, CHIEF JUSTICE ( for the Majority): This is a review of a published decision adjudging that Mitchell intentionally selected the battery victim because of the victim's race in violation of the hate crimes penalty enhancer. Mitchell challenged the constitutionality and the court of appeals held that the statute was constitutional. The sole issue before the court is the constitutionality of the "hate crimes" statute. We hold that the statute violates the First Amendment and is thus unconstitutional.

The facts are not in dispute. On October 7, 1989, a group of young black men and boys was gathered. Todd Mitchell, nineteen at the time, was one of the older members of the group. Some of the group were at one point discussing a scene from the movie "Mississippi Burning" where a white man beat a young black boy who was praying.

Approximately ten members of the group moved outdoors, still talking about the movie. Mitchell asked the group: "Do you all feel hyped up to move on some white people?" A short time later, Gregory Reddick, a fourteen-year old white male, approached the apartment complex. Reddick said nothing to the group, and merely walked by on the other side of the street. Mitchell then said: "You all want to fuck somebody up? There goes a white boy; go get him." Mitchell then counted to three and pointed the group in Reddick's direction.

The group ran towards Reddick, knocked him to the ground, beat him severely, and stole his "British Knights" tennis shoes. The police found Reddick unconscious a short while later. He remained in a coma for four days in the hospital, and the record indicates he suffered extensive injuries and possibly permanent brain damage. Mitchell was convicted of aggravated battery. The jury separately found that Mitchell intentionally selected Reddick as the battery victim because of Reddick's race.

This case presents an issue, which has spawned a growing debate in this country: the constitutionality of legislation that seeks to address hate crimes. Numerous articles have been published concerning the issue, some applauding hate crimes statutes and some vigorously in opposition. Individuals and organizations traditionally allied behind the same agenda have separated on the issue of the legitimacy of hate crimes statutes.

The response to reports of bias related crime has been significant. Nearly every state in the country has enacted some form of hate crime legislation. The Wisconsin legislature's response was to enact sec. 939.645, Stats., which enhances the potential penalty for a criminal actor if the state proves that the actor intentionally selected the victim because of the victim's race, religion, color, disability, sexual orientation, national origin or ancestry.

The hate crimes statute violates the First Amendment directly by punishing what the legislature has deemed to be offensive thought and violates the First Amendment indirectly by chilling free speech. [continue>

HEFFERNAN, CHIEF JUSTICE ( for the Majority)

ABRAHAMSON, JUSTICE
(DISSENTING)

BABLITCH, JUSTICE (DISSENTING)

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.  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:

 

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