Essay/Term paper: Mitchell v. wisconsin: why mitchell v. wisconsin sucked

Essay, term paper, research paper:  Politics

Mitchell v. Wisconsin: Why Mitchell v. Wisconsin Sucked


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 crime...is committed..because
of the race, religion, color, disability, sexual orientation, national origin
or ancestry of that person." Chief Justice Rehnquist deliverd the opinion of
the unanimous Court. This paper argues against the decision, and will attempt
to prove the unconstitutionality of such penalty enhancement laws.
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 law.
The U.S. Supreme Court's 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 Rehnquist's 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 Œ
conduct' of intentional selection of a victim". The Court's contention was
that "the statute punishes the Œbecause of' aspect of the defendant's 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 disagrees."
"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. Mitchell.
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 state's power to punish the action does
not remove the constitutional barrier to punishing the criminal's 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 Court's 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 one's beliefs should be shaped
by his mind and his conscience rather than coerced by the state."
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
victim's protected status, thus qualifying him for penalty enhancement... This
is too speculative a hypothesis to support Mitchell's overbreadth claim."
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
criminal's 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 Wisconsin's, 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 "political correctness" differs
only slightly from the Red Scare of the 1950's. 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.
Mitchell's second constitutional argument is that the statute violates
the Foruteenth Amendment as well as the First. The Foruteenth 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
defendant's 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 Wisconsin's penalty
enhancement statute, we need only examine Texas v. Johnson, a 1989 Supreme
Court case. The state's 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
Wisconsin's give the government too much power to excessively punish what it
deems unacceptable.
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 individual's 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 Wisconsin's
position than there are that support Mitchell's argument. However, many of
these rulings are of questionable constitutionality themselves. Two cases
arguably support Rehnquist's 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 Jehova's Witness in a
predominantly Catholic town. He distributed leaflets to a hostile crowd, and
was refused protection by the town's 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 Murphy's 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 Œfighting' 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 Œfighting'
words. However, the courts have generally been reluctant to uphold the Œ
fighting'words doctrine, and the Supreme Court has never done so (Gellman
369,370). Even if today's Court were to consider Chaplinsky valid, Mitchell's
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 Wisconsin's, 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. O'Brien. O'Brien 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 O'Brien, the government may regulate conduct which incidentally
infringes upon First Amendment rights, as long as the government interest is
"unrelated to the suppression" 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 O'Brien, would be that it actually supports an argument against the Court's
ruling in WIsconsin, and is not a precedent to support Rehnquist's decision.
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
Scalia's opinion in St. Paul, Œgovernment may not regulate use based on
hostility- or favoritism- toward the underlying message involved,' 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, legislature's 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 O'Connor 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,
"There 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 homophobics. 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 eveyone's 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 society's weakness (Gellman, (381-385).
The United States Supreme Court's 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 Œfighting words
doctrine', 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 future.
"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

Bibliography

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. O'Brien

Wisconsin v. Mitchell

Wooley v. Maynard

W.V. State Board of Education v. Barnette