Mitchell V. Wisconsin

On June 11, 1993, the United State Supreme Court upheld Wisconsins 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 ace, 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 Courts 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 Rehnquists 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 rime 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 ederal 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 states argument that the statute punishes only the conduct of intentional selection of a victim. The Courts contention was that the statute punishes the because of aspect of the defendants 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, Mitchells act of assaulting another human is a punishable rime, and no one could logiacally argue that the First Amendment protects this clearly criminal action. However, the states power to punish the action does not remove the constitutional barrier to punishing the criminals 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 Courts 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 ones beliefs should be haped by his mind and his conscience rather than coerced by the state. Another componet of Mitchells 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 he 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 victims protected status, thus qualifying him for penalty enhancement… This is too peculative a hypothesis to support Mitchells 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 criminals 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 Wisconsins, but one must consider how Rehnquist would rule if the penalty enhancement did not cover omething, such as racism, that he finds personally repugnant.

The recent attempt at political correctness differs only slightly from the Red Scare of the 1950s. 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 eligious 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. Mitchells 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 tates 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 r 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 defendants 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 Wisconsins enalty enhancement statute, we need only examine Texas v. Johnson, a 1989 Supreme Court case. The states 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 Wisconsins give the government too much power to excessively punish what it deems unacceptable.

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