First Amendment - penalty enhancement for hate crimes: content regulation, questionable state interests and non-traditional sentencing.

AuthorBrooks, Thomas D.
PositionSupreme Court Review - Case Note

    In Wisconsin v. Mitchell,(1) the United States Supreme Court held that the First Amendment does not prohibit a state from enhancing the penalty for a crime if the offender selected the victim because of the victim's race, color, religion, disability, sexual orientation, national origin, or ancestry.(2) In doing so, the Court appeared to back away from its 1992 decision in R.A.V. v. City of St. Paul,(3) which invalidated an ordinance prohibiting cross-burning and other displays tending to offend based on race, color, or religion.(4) Instead, the Court relied on another decision from 1992, Dawson v. Delaware,(5) which re-affirmed that a defendant's beliefs may be used in certain circumstances in determining the severity of sentence.(6)

    This Note begins by reviewing the responses of various state legislatures to the incidence of "hate crime." The Note then examines three lines of cases relevant to deciding the constitutionality of penalty-enhancement statutes for hate crimes. This Note posits that the Court answered a crucial threshold question incorrectly and therefore ignored relevant precedent in reaching its decision. Specifically, the Note questions the Court's threshold conclusion that Wisconsin's penalty-enhancement statute merely regulates nonexpressive conduct by arguing that the statute impermissibly regulates speech, or, in the alternative, that the statute impermissibly regulates expressive conduct. The Note concludes that the Court erred in ignoring these two arguments against sentence enhancement by focusing instead on cases addressing the admissibility of a defendant's words and expressive conduct during standard sentencing procedures.


    To put Mitchell in perspective, one must look at the case from two viewpoints. First, one must consider the various paths states have taken to address the perceived increase in hate crime. Second, one must consider the thicket of First Amendment doctrine through which these paths must wend.


      Three and one-half months before the Supreme Court heard oral arguments in Mitchell, the federal government released its first national report on hate crimes.(7) This report, compiled by the Federal Bureau of Investigation, showed that 4558 hate-crime incidents involving 4755 offenses were reported in 1991 in the thirty-two states participating in the study.(8) Intimidation was the incident most frequently reported, accounting for about a third of all offenses.(9) Vandalism was next at 27%, followed by simple assault (17%), aggravated assault (16%), and robbery (3%).(10) Sixty percent of the offenses were racially motivated.(11) Religious bias accounted for 20%, and ethnic and sexual-orientation bias 10% each.(12)

      Some, citing these figures with alarm--or citing no figures at all-proclaimed the United States to be undergoing an increase in the incidence of hate crimes.(13) Meanwhile, other signs pointed to ambiguity. The Anti-Defamation League of B'nai B'rith, for instance, noted that anti-Semitic crimes actually decreased by eight percent in 1992.(14) Moreover, one commentator has pointed out that recently instituted or intensified efforts to gather data on hate crimes--such as the F.B.I. report--have in a sense manufactured the surge in hate crimes; the surge "represent[s] reporting improvements rather than actual increases in bias crime levels."(15)

      In any event, state legislators have found hate crime to be enough of a problem to warrant regulation via statutes. These statutes take a variety of forms. For example, states have long prohibited vandalism of sites used for worship or burial,(16) and they have prohibited the intentional disturbance of religious meetings or ceremonies.(17) More recently, they have also banned the act of burning a cross or placing a swastika or other symbol on another's property with the intent to intimidate.(18)

      While these examples demonstrate a variety of possible state responses to hate crime, this Note will focus on yet another option: penalty-enhancement statutes. Twenty-eight jurisdictions, including Wisconsin, have enacted measures that can increase a criminal defendant's penalty for offenses visited upon a victim based on the victim's membership in one of several specified groups.(19) Another such measure is currently before the United States Congress and would do the same for federal crimes.(20) Penalty-enhancement statutes for hate crimes can be broken down into four categories.(21)

      First, there are statutes that might be called "pure" penalty enhancers: they provide for extra punishment if the defendant commits any crime in whole or in part because the victim belongs to an enumerated group. These pure enhancers can further be broken down into those that require or allow prison time or monetary fines to be added to the penalty for the underlying offense,(22) and those that provide for the degree of the underlying offense to be increased in severity.(23)

      The second class of penalty-enhancement statutes is more narrowly drawn. These statutes are triggered by fewer underlying offenses. That is, these statutes provide the same stiffer punishments or increases in degree of the underlying offense as "pure" enhancers, but they are not triggered by all crimes. For example, Massachusetts' penalty-enhancement statute is triggered only by the offenses of assault, battery, or damage to real or personal property.(24)

      Next are statutes marked by prosecutorial discretion. These statutes cover actions that might also be prosecuted under other statutes; the only thing preventing a defendant from facing a stricter penalty under the bias statute appears to be the prosecutor's decision to proceed under one offense or the other, or both. For example, Connecticut may charge a defendant with intimidation based on bigotry or bias if "with specific intent to intimidate or harass another person because of such other person's race, religion, ethnicity or sexual orientation . . . [he] [clauses physical contact with such other person."(25) While the offense of intimidation, a felony, requires only physical contact, assault in the third degree, a misdemeanor, requires physical injury.(26) Thus, a defendant charged with a hate crime faces the prospect of an enhanced penalty under an intimidation statute.

      Finally, there are statutes that list bias against certain groups as an aggravating factor to be considered in sentencing.(27) Although these statutes do not enhance punishment in the sense of adding to the penalty authorized by statute, they do enhance punishment by boosting a sentence toward the upper statutory limit.

      Prior to Mitchell, litigation under two of the above statutes eventually made its way to state supreme courts, with conflicting results. In State v. Plowman,(28) the Supreme Court of Oregon upheld that state's first-degree ethnic intimidation law.(29) The defendant in Plowman was convicted of both assault and ethnic intimidation for his role in an attack by three white men on two Hispanic men.(30) The court rejected defendant's contention that the intimidation conviction punished only his speech, namely the racial epithets he uttered during the attack.(31) The court held that the intimidation statute also targeted the group nature of the attack, and that speech is often used simply as evidence of intent, as it was in this case.(32) In State v. Wyant,(33) however, the Ohio Supreme Court overturned a statute enhancing penalties for aggravated menacing, menacing, criminal damaging or endangering, criminal mischief, and some types of telephone harassment.(34) The court found that, since the penalty for the underlying offense of aggravated menacing already punishes the defendant's criminal action, the only thing left for the enhancement statute to punish was the offender's motive or thought.(35) However, the First Amendment prohibits punishment of thought.(36) Thus, the Ohio high court found the statute unconstitutional.(37)

      The expanding view that hate crime was escalating and the rapid proliferation of hate-crime statutes quickly made hate crime a controversial public issue. The difference in state high court opinions set the stage for the United States Supreme Court to grant certiorari in Mitchell.(38)


      Three lines of authority underlie the question of whether penalty-enhancement statutes for hate crimes are permissible under the First Amendment. First are those cases delineating what constitutes expression. Second are those cases setting forth guidelines to decide when expression may be regulated by statute. Third are those dealing with when expression is admissible as evidence in sentencing procedures.

      1. What Constitutes Expression Under the First Amendment?

        The idea that spoken or written words may be protected by the First Amendment is not problematic.(39) However, the idea that other activity may constitute "speech" or expression to be protected by the amendment has presented the Court with somewhat more difficulty. In the 1968 case of United States v. O'Brien,(40) for instance, Chief Justice Warren, writing for the Court, remarked that "[w]e cannot accept the view that an apparently limitless variety of conduct can be labeled |speech' whenever the person engaging in the conduct intends thereby to express an idea."(41)

        By 1974, though, the Court was ready to accept that conduct other than speech or writing may constitute expression under the First Amendment. The Court outlined the considerations that govern whether conduct is deemed expressive in Spence v. Washington.(42) In Spence, the Court held that displaying a United States flag upon which was affixed a peace sign constituted expressive conduct protected by the First Amendment.(43) In so holding, the Court laid out a three-prong test for determining whether conduct was expressive. First, the context of the conduct must suggest that the conduct is expressive.(44) In Spence, the Court found...

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