Penalty for Bias-Motivated Crimes


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 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 

 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 

 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.

 "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 
defendant¹s 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 

 "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. 

 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 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, "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 one¹s beliefs should be 
shaped by his mind and his conscience rather than coerced by the 

 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 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
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 defendant¹s 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 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 

 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 "fighting words doctrine". 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 "god damn 
racketeer and a damn fascist", 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, "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 fighting¹ 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 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 

 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 
Scalia¹s opinion in St. Paul, government 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?" 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, legislature¹s 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 O¹Connor 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, ³There 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 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 fighting 
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 

 "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 


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. O¹Brien

Wisconsin v. Mitchell

Wooley v. Maynard

W.V. State Board of Education v. Barnette


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