In a landmark decision handed down June 11, the United States Supreme Court unanimously upheld the constitutionality of the most broadly applicable type of bias crime law. In Wisconsin v. Mitchell, the Court affirmed the constitutionality of a state criminal statute that increases the penalty levied against convicted criminals who target their victims on the basis of status - such as race, religion or sexual orientation. Currently at least 26 other states have sentence enhancement provisions that increase the penalties for underlying crimes when bias is proven. Many other states have a related offense called bias "intimidation laws" which provides for an "additional" sentence as opposed to an "enhanced" one. The practical effect, though, of both these laws is increased penalties for convicted bias offenders. The decision firmly and unambiguously establishes the authority of government to specially combat violence through criminal statutes.
Defendant Incensed Over 'Mississippi Burning'
The original defendant in the case, Todd Mitchell, was convicted of instigating a brutal black on white mob assault in 1989 that left his teenage victim, Gregory Riddick, comatose for four days with possible permanent brain damage. Mitchell, then nineteen, was incensed over a scene in the film Mississippi Burning, where a young black child was beaten by a white racist. Mitchell asked a group of young males, "Do you all feel hyped up to move on some white people?" When Riddick entered the area Mitchell counted to three and said "You all want to **** somebody up?...there goes a white boy; go get him."
In a 5-2 decision in June 1992, the Wisconsin Supreme Court threw out the additional two year prison sentence Mitchell received under the state's bias crime penalty enhancement statute on the grounds that speech and belief were punished in violation of the First Amendment. The Court found that "The personal prejudices of the attackers are protected by the First Amendment." The Wisconsin Supreme Court held the crime is the same whether the, "victim is attacked because of his skin color or because he was wearing British Knight tennis shoes."
In November 1992, the International Association of Official Human Rights Agencies, Inc. (IAOHRA) and others filed a brief supporting the state of Wisconsin in its request for Supreme Court review of the case. IAOHRA, as part of a coordinated effort with other litigants, played an important role in getting crucial research on bias violence from Northeastern University, the National Institute Against Prejudice and Violence, Stanford and the University of California before the Court.
At the time state courts across the nation were split on the constitutionality of bias crime statutes. While the Oregon Supreme Court upheld that State's bias laws, the Ohio Supreme Court joined Wisconsin in invalidating such statutes. Numerous other state court challenges had been filed in New Jersey, Florida, California and other states. After the Supreme Court agreed to hear the case in December 1992, counsel for IAOHRA immediately prepared another brief urging the Court to uphold the constitutionality of the statute.
On April 21, the nine Supreme Court Justices heard arguments directly from attorneys on both sides. Wisconsin Attorney General James Doyle and Justice Department counsel, Michael Dreeben, urged the Court to reverse the state court decision, while Todd Mitchell's lawyer Lynn Adelman contended that the law is unconstitutional.
Hate Crimes, Not Speech
Attorney General Doyle maintained that "Mr. Mitchell is free to think any thought." He further maintained that the state was targeting the harmful effects of these crimes, rather than the underlying belief. On this point Justice Kennedy noted, "It's mostly bigots who select people because of their race, that is just the way it happens to be." The Justices appeared visibly unconvinced of Mr. Adelman's position. Still, Adelman firmly and articulately made his case: "It's called a hate crime statute - it punishes hate, animus, a belief system, a viewpoint ...if you punish Todd Mitchell's viewpoint you have to be prepared to punish other viewpoints." The hour long oral argument was notable for the well executed presentations on both sides and for the spirited questioning by the Justices.
In the end the Court came down squarely against Mitchell, upholding Wisconsin's statute. In a concise, but firm opinion Chief Justice William Rehnquist, writing for a unanimous court, maintained that bias crime laws like Wisconsin's address harmful conduct rather than expression protected by the First Amendment: "The Wisconsin statute singles out for enhancement bias inspired conduct because this conduct is thought to inflict greater individual and societal harm."
This year's straightforward opinion in Mitchell stands in sharp contrast to last year's complicated and controversial "crossburning" decision in R.A.V. v. St. Paul. In R.A.V., the Court ruled that a selective ban on symbols or burning crosses was unconstitutional when the selectivity was grounded on the idea expressed. The Court's logic in these two cases is simple - acts of discrimination, especially violent criminal conduct, are well within the government's authority to proscribe, but offensive and distributing ideas are not. While the state can not punish a person's abstract beliefs, legislatures and courts can properly examine a criminal's motivation and the harm caused by his conduct in formulating a sentence.
A copy of the Wisconsin v. Mitchell derision may be obtained by contacting the IAOHRA Office, 444 N Capitol ST NW, STE 634, Washington DC 20001- 9998; (202) 624-5410. Above article by Brian Levin, Esq., author of IAOHRA briefs in the Mitchell case. Reprinted with permission from thee July IAOHRA BULLETIN.