The Unanticipated Consequences of Hate Crime Legislation

Summary

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The question of whether such legislation violates the First Amendment is central in many debates, although that issue was resolved in 1993 by the United States Supreme Court in Wisconsin v. Mitchell.1 Less than a decade later, 45 states and the federal government had penalty enhancement statutes.2 But the serious practical consequences and related ethical issues are seldom discussed in academic circles and in the court of public opinion. In a unanimous opinion written by Chief Justice William Rehnquist, the Court reversed the Wisconsin court's decision and upheld the statute, stating that the Wisconsin law did not violate the First Amendment because: 1 motive played the same role in the statute that it played in federal anti-discrimination laws already upheld as constitutional; 2 the statute was aimed at conduct, not speech; 3 the state interest in combating hate-related crimes went beyond a "mere disagreement" with the thoughts behind them; 4 the possibility of suppressing bigoted speech for fear of being penalized if one also committed a serious crime was too remote to cause a "chilling effect" on speech; and 5 the First Amendment had not previously prohibited the use of words as evidence of motive, intent, or any other element of a crime.

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Extract

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The Unanticipated Consequences of Hate Crime Legislation

Hate crime legislation is, paradoxically, one of the most over- and under-discussed topics in the field of criminology. The question of whether such legislation violates the First Amendment is central in many debates, although that issue was resolved in 1993 by the United States Supreme Court in Wisconsin v. Mitchell.1 Less than a decade later, 45 states and the federal government had penalty enhancement statutes.2 But the serious practical consequences and related ethical issues are seldom discussed in academic circles and in the court of public opinion.

The Mitchell case, which brought the important constitutional question concerning hate crime legislation and free speech before the Supreme Court, involved a group of black males who attacked a white youth in Kenosha County, Wisconsin. This attack resulted in convictions for aggravated battery, which carried a maximum penalty of two years in prison. Wisconsin law, however, allowed the penalty to be enhaced up to four years based on a jury's determination that the victim had been selected on the basis of his race. The defendant appealed the enhancement to the Wisconsin Supreme Court.

After the Wisconsin Supreme Court overturned the conviction on the grounds that it violated the First Amendment by punishing offensive thought, the United S...

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