Washington, D.C. Counsel of the Anti-Defamation League
This article originally appeared in The Hill on June 14, 2013
The simple fact is that bigots do not burn parallelograms on the front lawns of African-American families that had just moved into a previously all-white neighborhood.
The message of the charred remains of a parallelogram might be misunderstood. Not so the remains of a burned cross.
Hate crimes are, in essence, message crimes. They warrant special attention, and special punishment, because of the particularly devastating impact they have on communities.
This week, as we mark the 20th anniversary of the landmark Supreme Court decision upholding laws that mandate enhanced criminal penalties for such crimes, Wisconsin v. Mitchell, it is worth noting that legislatures across the nation have responded. Congress and 45 states and the District of Columbia have enacted hate crime penalty-enhancement laws, many based on a model law the Anti-Defamation League wrote in 1981.
Mitchell involved a challenge to Wisconsin’s penalty-enhancement hate crime statute. Todd Mitchell had received an enhanced sentence – two additional years – for having intentionally instigated a vicious racial assault by a group of young black men against a white boy in Kenosha, Wis.
The court summarized the facts as follows:
On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture “Mississippi Burning,” in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them: “Do you all feel hyped up to move on some white people?” Shortly thereafter, a young boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: “You all want to fuck somebody up? There goes a white boy; go get him.” Mitchell counted to three and pointed in the boy’s direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.
A jury convicted Mitchell of aggravated battery, and also found that he had intentionally selected the victim because of his race. Mitchell was sentenced to four years in prison.
Appealing his conviction and sentence, Mitchell argued the Wisconsin law violated his First Amendment rights. A lower court upheld his sentence, but the Wisconsin Supreme Court overturned it, finding that the penalty-enhancement statute punished his offensive thoughts. The state of Wisconsin appealed this ruling, and the Supreme Court granted certiorari.
The case attracted unusual attention. Among those who urged the court to uphold the Wisconsin hate crime statute were many major law enforcement and civil rights organizations, including the National ACLU and ADL, which filed a brief on behalf of 16 national civil rights and law enforcement organizations – including the Fraternal Order of Police and the Center for Constitutional Rights -- and a brief filed by the Attorney General of Ohio on behalf of all the other 49 states and the District of Columbia.
On June 11, 1993, the Supreme Court reversed the Wisconsin Supreme Court, upholding the law in the best kind of decision -- short, unanimous, not many footnotes -- written by the chief justice. And this chief justice, William Rehnquist, was no knee-jerk, politically correct liberal.
The court asserted that the Wisconsin statute was intended to address conduct which the Wisconsin legislature thought would “inflict greater individual and societal harm.” The state’s desire to redress distinct emotional harms and community tensions, the court held, “provides an adequate explanation for its penalty-enhancement provision over and above mere disagreement with offenders’ beliefs or biases.”
While sniping about hate crime laws continues in some academic ivory towers and by some First Amendment purists, Mitchell essentially ended the constitutional debate over these laws.
Americans are free to think, preach, and believe whatever they want. It is only when an individual commits a crime based on biased beliefs and intentionally targets another for violence or vandalism that a hate crime statute can be triggered.
Over the past 20 years, these laws – and the police training and community engagement they have sparked – have proved their worth. Civic leaders and police officials have come to recognize that strong enforcement of these laws can have a deterrent impact and limit the potential for a single hate crime incident to explode into a cycle of violence and widespread community disturbances.
In the end, however, we should have no delusions about hate crime laws. Bigotry, racism, homophobia and anti-Semitism cannot be legislated out of existence. The law is absolutely a blunt instrument – it is clearly much better to prevent these crimes from happening in the first place.
We cannot outlaw hate, but laws shape attitudes. And attitudes influence behavior. When these crimes do occur, we must send an unmistakable message that they matter, that our society takes them very seriously. Hate violence merits priority attention – and hate crime laws are an essential, constitutional way to help ensure they receive it.
"Civic leaders and police officials have come to recognize that strong enforcement of these laws can have a deterrent impact and limit the potential for a single hate crime incident to explode into a cycle of violence and widespread community disturbances."