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Mitchell V Wisconsin Essay Research Paper

Mitchell V Wisconsin Essay, Research Paper


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


?conduct? of intentional selection of a victim?. The Court?s


contention was that ?the statute punishes the ?because 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


?fighting? 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 ?fighting?


words. However, the courts have generally been reluctant to uphold


the ?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, ?government 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 ?fighting 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


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

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