State v. Mitchell

Wisconsin, Plaintiff-Respondent, State

v. Mitchell, Defendant-Appellant-Petitioner. Todd

Supreme Court 26, February argument No. 90-2474-CR. Oral 1992. Decided June 1992. (Also 807.) reported in 485 N.W.2d defendant-appellant-petitioner there was a For Goldstein, oral by argu- Bernard Milwaukee and brief by ment Bernard Goldstein. argued was plaintiff-respondent

For the cause Lundsten, attorney general Paul with assistant whom Doyle. on brief James E. was Adelman, by Lynn Amicus brief was curiae filed Adelman, Murray, Pamela Moorshead Adelman & S.C., Milwaukee, for The National Association of Crimi- Lawyers, nal Defense The Wisconsin Association of Lawyers Criminal Defense and the State Wisconsin Public Defender. Friebert,

Amicus by curiae brief was filed Robert H. Munroe, Freibert, Cordelia S. Peter K. and Rofes John, Finerty S.C., & St. Ruth L. Lan- Milwaukee and

156 sner, Freeman, Sandberg, Steven M. A. Michael New York, York New for Anti-Defamation of B'nai League B'rith, Council, The Milwaukee Jewish The Wisconsin Conference, League, Jewish The The Milwaukee Urban Inc., Madison League, Urban The NAACP-Milwaukee United, Community Branch The and Madison Inc. HEFFERNAN, CHIEF JUSTICE. This a review of published appeals, a decision of the court of Mitchell, State v. (Ct. 163 Wis. 2d N.W.2d 1991), App. which judgments affirmed of the circuit county, Breitenbach, court for Kenosha Jerold W. Cir- Judge, adjudging cuit Todd guilty aggravated Mitchell battery, party crime, adjudging to a that Mitchell intentionally battery selected the victim because the victim's race violation of the hate crimes 939.645, enhancer, challenged sec. Stats. Mitchell constitutionality 939.645, Stats., of the sec. on appeal, appeals and the court of held that the statute was consti- unconstitutionally tutional. We conclude that the statute infringes speech, upon free reverse the decision appeals. court issue court sole before the is the constitutional- ity 939.645, Stats., of sec. the "hate crimes" statute.1 939.645, crimes,,

1At the time of Mitchell's sec. Stats. 1989-90, provided: (1) person penalties following, If all of a does (2):

underlying provided crime are increased as sub. (a) Commits a crime under chs. 939 to 948. (b) Intentionally person against selects the whom the crime par. (a) property damaged under or committed selects which is par. (a) race, or otherwise affected crime under because of color, religion, orientation, disability, origin sexual or national ances- try person occupant property. of that or the owner (2)(a) (1) ordinarily If the crime committed under sub. misdemeanor, other misdemeanor than Class A the revised maxi- (1) on the statute its face violates: asserts that Mitchell the First speech guaranteed by Amend- free right his of protec- process equal and (2) right his due ment and to by the Fourteenth Amend- guaranteed laws tion of the First statute violates the hold that the ment. We and is thus unconstitutional.2 Amendment 7, 1989, in a dispute. are not On October facts boys gathered men was an and at group young of black Mitchell, Todd nineteen apartment complex Kenosha. time, group. at was one of the older members the point discussing a group of were at one scene the Some where a "Mississippi Burning" the movie white from young boy praying. who was man beat a black Approximately group ten members of the moved asked, outdoors, talking about the movie. Mitchell still on you hyped up "Do all feel to move some group: the Reddick, later, A Gregory short time people?" white male, fourteen-year-old approached apartment the white $10,000 imprison- period mum the maximum of fine is and revised county year jail. is ment one (b) (1) ordinarily a If the under sub. is Class crime committed misdemeanor, changes section A increase under this felony fine of crime and the revised maximum status $10,000 years. period imprisonment maximum and the revised (c) (1) felony, If the crime under sub. is a the maxi- committed by by may prescribed mum law for the crime be increased not fine $5,000 period imprisonment pre- more than the maximum and by by for more than 5 scribed law the crime increased years. (3) penalties provides This section enhancement underlying applicable for the crime. The court shall direct that the special specified trier of find a as to all of the issues fact verdict sub. (4) race, apply any proof if This section does not crime color, orientation, religion, disability, origin sexual national or ances- try required for .a conviction for crime. holding, 2Because of our we do address Mitchell's Four equal protection vagueness Amendment claims. teenth complex. nothing group, merely Reddick said walked on other side the street. Mitchell then somebody up? goes said: want "You all to fuck There a boy; get go white him." then Mitchell counted three pointed group and the Reddick's direction. group Reddick,

The ran him to towards knocked the ground, severely, him beat and his stole "British Knights" police tennis shoes. The found Reddick uncon- scious a while He in a short later. remained coma for days hospital, four in the and record indicates he injuries possibly permanent suffered extensive damage. and brain aggravated battery, party Mitchell was convicted of 940.19(lm), .to a crime. Sections 939.05 and Stats. The jury separately intentionally found that Mitchell selected battery Reddick as the victim because of Reddick's race. battery aggravated The conviction carried a maximum 940.19(lm) years, 939.50(3)(e), sentence of two secs. and jury Stats. Because the that found Mitchell selected 939.645(2)(c), race, Reddick because of sec. Reddick's potential Stats., aggravated battery maximum for increased sentence years. to seven The trial court sen- years aggravated battery.3 for tenced Mitchell to four circuit After the court denied Mitchell's for request post-conviction appealed judgments relief, Mitchell appeals, of of conviction and the sentences to the court constitutionality focusing on the of the hate crimes stat- theft, crime, party also a 3Mitchell was convicted sec. 943.20(1) (a) (3)(d)2, imposed and Stats. court circuit stayed year imposed a four sentence theft for the conviction and year period probation. four court consecutive The circuit did not find that theft hate crimes The court violated the statute. conviction, appeals rejected challenges Mitchell's the theft Mitchell, 664-65, portion 2d at the court of Wis. appeals decision is not before the court. 5, 1991, appeals the court of affirmed the On June

ute. concluding that Mitchell judgments, court's circuit and that the hate any equal protection challenge waived State v. vague neither nor overbroad. crimes statute was (Ct. 1991). Mitchell, 652, 473 App. 163 Wis. 2d N.W.2d on the issue of petition Mitchell's review granted We statute, and constitutionality of the hate crimes now reverse.4 presents spawned issue has

This case an which country: constitutionality debate in this growing to address crimes. Numerous legislation that seeks hate issue, published concerning have been some articles applauding vigorously hate crimes statutes and some organizations traditionally opposition.5 Individuals and curiae 4Amicus were filed with the court on behalf of briefs separate coalitions: the National Association of Criminal two Lawyers, Defense the Wisconsin Association of Criminal Defense Defender; Lawyers and the State Public and the Anti- Wisconsin B'rith, League B'nai Jewish Coun Defamation of Milwaukee Conference, cil, the Wisconsin Jewish the Milwaukee Urban Inc., League, League, Urban the Madison Branch, Community and NAACP —Milwaukee the Madison United, Inc.

5See, e.g., Susan Gellman, Sticks and Stones Can Put You in Jail, Your But Can Words Increase Sentence? Constitutional Laws, Policy Ethnic and Dilemmas Intimidation 39 U.C.L.A. of Bias (1991); Hernandez, Crimes: Tanya L. Rev. 333 and Kateri Racially Unconscious Racism in the Prosecution Motivated of Violence, (1990). Similarly, 99 Yale L.J. 845 numerous courts and currently struggling are commentators with constitutional See, e.g., implications college campus speech" of "hate rules. Post, (E.D. Regents, UWM Inc. v. Board Supp. 774 F. 1163 of University Michigan, 1991); (E.D. Doe v. Supp. Wis. 721 F. of Him 1989); Lawrence, He Hollers Let Go: Mich. Charles R. If Regulating Campus-, 431; Speech Racist on L.J. 1990 Duke Strossen, Regulating Speech Campus: A Racist on Mod- Nadine allied behind the same agenda separated have on the issue of the of legitimacy hate crimes statutes. As one commentator noted: occurring merely debate over these laws

[T]he allies, between traditional but between one side and Moreover, viewpoint prevails, itself. whenever either courts, legislature, whether in the even in purely argument, proponents academic its do not very happy seem to They very about it. can see view, opponents' point well their fact largely agree everyone with it. if It is as involved permissibility desirability thé debate over the actually ethnic intimidation laws were on both sides at once. Gellman,

Susan 39 U.C.L.A. L. at (emphasis Rev. original).

Statistical sources indicate that incidents of all types of bias Joseph related crime are on the rise. M. Fernandez, Bringing Hate Crime Into Focus —The Hate 1990, Crimes Act Statistics 26 Harv. C.R.-C.L. L. (1991); Hernandez, Tanya Rev. 261 Kateri Bias Crimes: Unconscious Racism in the Racially Prosecution Violence, 845, Motivated 99 Yale L.J. 845-46 Between 1980 and three thousand incidents of bias related violence were Id. documented. at 846. The Anti- (ADL) League Defamation reports B'nai B'rith "[d]uring 1990 there were 1685 anti-Semitic incidents reported to the Anti-Defamation League from 40 states and the District of Columbia." 1990 Audit of Anti- Incidents, Semitic League Anti-Defamation of B'nai (1990). 1 B'rith This was the highest reported total ever 484; Proposal?, est 1990 Duke L.J. and Katherine T. Bartlett and O'Barr, Chilly College Campuses: The Jean Climate on An Debate, Expansion Speech" the "Hate 1990 Duke L.J. 574. of history year Id. The the audit. National of in twelve reported Gay 7031 incidents Force Task and Lesbian Project, anti-gay Anti-Violence 1989. violence (NGLTF), Gay Anti- Task Force Lesbian National Gay in 1989 Violence, and Defamation Victimization (1990). Developments Ori- in the Law—Sexual See also 1508, Law, L. Rev. 1541-42 102 Harv. and the entation response crimes, the in hate the recent rise In Congress Statis- the Hate Crimes enacted States United purpose The Pub. L. No. 101-275. tics Act system collection a national data Act is to establish concerning compilation bias-related of statistics for Attorney pub- requires General The Act crimes. generally, summary findings. See an lish annual supra. Fernandez, reports response level, of bias

At the state Nearly every significant. state crime has been related legisla- country hate crime some form of has enacted Report: A Statutes: (1991). ADL Hate Crimes tion. See Law Appendix pp. Report, C, 24-26 1991 Status response legislature's to enact sec. was Wisconsin potential Stats., 939.645, enhances the which proves inten- if that the actor a criminal actor state tionally race, because of the victim's the victim selected disability, religion, orientation, national color, sexual ancestry. origin or step reviewing a constitutional chal-

The first party lenge bears is to determine which to a statute constitutionality proving or unconstitu- its burden party challenging tionality. ordina- the statute While the proving beyond rily reasonable bears the burden unconstitutional, Bachowski v. that the statute doubt Salamone, (1987), 397, 404, 139 Wis. 2d 407 N.W.2d proponent the burden shifts to the statute to constitutionality its when the statute establish City upon rights. encroaches First Amendment Baumann, Madison v. 660, 669, 470 162 Wis. 2d N.W.2d (1991). punishes crimes 296 Because hate statute below, thought, defendant's biased as discussed and thus upon rights, First encroaches Amendment burden is constitutionality. upon prove the state to its The hate crimes statute violates the First Amend- directly by punishing ment what has legislature thought deemed to be offensive and violates the First indirectly by chilling speech. free Amendment The First Amendment of the United States Consti- bluntly: tution states no . . . "Congress shall make law speech."6 The First Amend- abridging the freedom " protects only speech thought but as well. ment [A]t is the notion that an the heart of First Amendment will, be free as he individual should to believe that society shaped by his mind a free one's beliefs should by the and his conscience rather than coerced State." Education, Abood v. Detroit Bd. 209, 431 U.S. 234-35 fundamentally, pro- Even more constitution of how offensive speech thought, regardless tects all may principle underlying it be. there is a bedrock "[I]f Amendment, government the First it is that the simply society prohibit expression of an idea because Texas v. disagreeable." finds the idea itself offensive or Johnson, 397, (1989).7 491 U.S. 414 As Justice Holmes I, provides

6Article section of the Wisconsin Constitution sweeping passed equally language that laws shall be "no liberty speech." abridge restrain Paul, City 90-7675, 7See also R.A.V. v. St. No. — — Magazine, *9, (June 22, 1992); Hustler U.S. LEXIS at of the Constitution any principle put it: "If there it any than other attachment calls for imperatively more for thought free thought of free principle is the —not we thought us but freedom for with agree those who Schwimmer, 279 U.S. 644, v. United States hate." overruled, (Holmes, J., dissenting), (1929) 654-55 States, 328 U.S. 61 (1946).8 v. United Girouard punishes big- hate crimes statute Without doubt punishes that the statute The state asserts thought. oted of a victim. intentional selection only the "conduct" of victim is an element of of a disagree. We Selection offense, "intent" part of the defendant's underlying any upon In assault an individual committing the crime. punishes The statute of the victim. there is a selection selection, the aspect of" of the defendant's the "because motive victim, reason the defendant selected the behind the selection. designed the model hate crimes statute

Construing (ADL), B'nai B'rith League of by the Anti-Defamation Falwell, (1988); City Council Los 46, Inc. v. 55-56 485 U.S. Vincent, (1984); 789, Taxpayers Angeles v. 466 U.S. 804 65, (1983); Drug Corp., 60, Bolger Youngs v. Products 463 U.S. 72 Brown, (1980); Carey FCC v. 455, v. 447 U.S. 462-63 Pacifica Foundation, (1978); Young v. American 726, 745-46 438 U.S. Theatres, Inc., (1976) 50, 63-65, (plurality Mini 67-68 427 U.S. Valeo, (1976); Grayned Buckley v. 1, v. opinion); 424 U.S. 16-17 Chicago Dept. v. 104, (1972); Rockford, Police 408 U.S. 115 Maryland, 92, (1972); Mosley, Bachellar v. 397 U.S. 408 U.S. 95 O'Brien, 367, (1970); United States v. 564, 391 U.S. Louisiana, 131, (1966); Brown v. (1968); 383 U.S. 142-43 Stromberg California, v. 283 U.S. 368-69 Voltaire, surely one 8As said in a statement attributed to was T philosophical our American constitution: ancestors of your you say I defend to the death disapprove of what but will right say it.”

upon appar- which the Wisconsin hate crimes statute is based,9 ently loosely provides one following author insightful analysis: model, charge the ADL

Under of ethnic intimi- always predicated dation must on certain offenses proscribed elsewhere in a state's criminal code. As already punishable, those offenses are all remains is an additional for the actor's rea- sons for his or her actions. The model statute does effects, mind, change not address state of offense, only thoughts character of the but propelled government ideas that the actor to act. The not, course, punish thoughts could these and ideas independently. they That are held one who com- mits a crime because of his or her beliefs does not course, remove this constitutional shield. Of the First protection guaranteed Amendment the actor's thoughts protect prosecu- him does or her from Neither, however, tion for the associated action. does power punish the state's the action remove the punishing thoughts. constitutional barrier to provides: ADL 9The model statute if, person by A. A the crime of commits intimidation reason race, color, perceived religion, origin actual or national or sexual individuals, group orientation of another individual or he violates (insert provision Section-of the Penal Code code for criminal mischief, harassment, trespass, menacing, criminal assault and/or conduct). appropriate statutorily proscribed other criminal (the a-misdemeanor/felony degree B. Intimidation is liability degree criminal should be at least one more serious than that offense). imposed for commission of the Report: Report, ADL Crimes A Law Hate Statutes: 1991 Status (1991) added). p. (emphasis 4 While the Wisconsin statute substi- of," phrase "by tutes the "because of" for reason it is clear that both statutes are concerned with the actor's reason motive acting. 333, (1991).10 Gellman, U.C.L.A. L. Rev.

Susan 948, Stats., chs. 939 to Because all of the crimes under already punishable, all that remains is an additional are punishment selecting for the defendant's motive punishment bigoted of the defendant's victim. directly implicates crimes statute and by motive the hate upon rights. encroaches First Amendment specifically phrase While the statute does not race, color, religion, "because of . . . element [etc.]" history prejudice, terms of bias or it is clear from the statutes, above, 939.645, detailed sec. anti-bias Stats., expressly bigoted aimed at the bias of the actor. Merely because the statute refers a literal sense to the Beebe, 738, App. 10See also State v. 67 Or. 680 P.2d 11 (1984). Beebe, Appeals Oregon interpreted In the Court of an model, ethnic intimidation statute fashioned after the ADL ORS 166.155(1), recognized punished that the statute motive: protection any

The statute does not offer more class of victims. Anyone may classifies, bigotry. be a victim of It is the defendant who by distinguishes and he does so his motive. The statute between acts racial, religious of harassment which are motivated ethnic or animus and acts of harassment which are not so motivated. added). (emphasis People Grupe, Id. at 13 In v. 141 Misc. 2d (N.Y. 1988), interpreted 532 N.Y.S.2d 815 Crim. Ct. the court prohibits persons New York's hate crimes statute which from subjecting persons physical pro contact "because of" their case, 240.30(3), tected status. In that the court stated: "Section case, applied regulates both on its face and as in this violent conduct, physical intimidation, when committed intention ally racial, religious prejudice." and because or ethnic Id. at of added). State, 17, (emphasis Finally, App. 817 Kinser v. 88 Md. 894, (1991), upheld 591 A.2d 896 the court a conviction under statute, Maryland's hate crimes Md. Ann. Code art. 470A(b)(3) 1990), (Supp. part because § the defendant's con "overwhelmingly duct his actions were motivated demonstrate^] added.) (Emphasis racial animus." selecting, does not mean of intentional "conduct" practical and eye blind to the intent must turn a court or offensive motive punishment effect of the law — "selecting" is not akin to The conduct of thought.11 regarding the confusion seems to be considerable 11There Black's Law in criminal law. As meaning effect of "motive" and (6th 1990) in its definition of "intent": Dictionary ed. states is what not be confused. Motive Intent and motive should only act, person the state prompts act. Intent refers or fail to the act is done or omitted. of mind with which dissenting opinion of clearly in the This confusion is manifested Bablitch, "intentionally" pp. correctly at which defines Justice speci- thing the result purpose or cause 197-198 as "a to do fied," correctly recognizes pp. 187-188 n.2 that the term at motive, con- implicates and somehow an actor's "because of" ordinary criminal statute involves the hate crimes cludes that intent. battery, aggravated the neces-

In this case the crime was Stats., 940.19(lm), "intent to cause sary sec. is an intent under great bodily Quite clearly, intent to cause Mitchell's great harm." his motive or reason for bodily Reddick is distinct from harm to person's with a reasons doing law is not concerned so. Criminal crimes, pur- intent or committing rather with the actor's but pose doing so. explained by Gellman: Professor

As "intent," concepts they "Motive,” "purpose" in that are related They legally thought processes. in crucial are distinct all refer nothing respects, reason for more than an actor's however. Motive pur- opposed acting, "why" Unlike to the "what" conduct. as intent, element of pose criminal offense or an motive cannot be a an offense. upon consideration of the more clear The distinction becomes purpose legal altering on the characterization the intent or effect of thereof) (or conduct, compared effect lack as to the of the same example burglary, chang- Continuing altering with the the motive. very changes act: if ing purpose nature of the the break-in assaulting, burglarizing, murdering conduct of and other criminal conduct. It cannot be established. objectively Rather, an examination of the intentional "selection" necessarily requires subjective a victim examination of motive or reason for out the singling particu- actor's person against lar whom he or she commits a crime.12 purpose getting property

A broke into B's house for the A's own (not purpose), breaking simply breaking in a criminal the act of entering trespass, burglary, and or even if A's motive was identi- (the debts). contrast, motives, pay By changing cal desire to his A's sympathetic (say, buy even to more ones the desire to a house for the homeless), purpose committing while his was that of the crime of house, change theft B's does the nature of the act: it is still burglary. Gellman, (emphasis Susan U.C.L.A. L. origi- Rev. at 364-65 nal). speáks aspect While the state of the "intentional" of the statute, hate crimes when the focus is on the "selects ... because law, aspect of" it becomes clear that it is the actor's motive punished targeted by which is the statute. fact, May 13, 1992, legislature

12In on amended sec. 939.645, Stats., apply specifically where the selection is "in part perception regard whole or because of the actor's belief or ing" the victim's status "whether or not the actor's belief or perception was correct." 1991 Wis. Act 291. Sections 939.645(1)(b) (4), Stats., (with currently provide the substan changes highlighted): tive (1)(b) Intentionally person against selects the whom the crime (a) par. property damaged under is committed or selects the that is or (a) par. part otherwise affected the crime under in whole or in perception regarding race, relig the actor's

because of or belief ion, color, orientation, disability, origin ancestry sexual national or person occupant property, of that or the owner or of that whether or perception not the actor's or was correct. belief (4) apply any race, proof This section does not crime if color, religion, disability, orientation, origin sexual national or ances try proof any person's perception regarding or or another's belief race, color, religion, disability, orientation, origin sexual national ancestry required for a conviction for that crime. Gregory case, In this Todd Mitchell selected Red- dick because Reddick is white. Mitchell is black. upon prove circumstantial evidence relied that Mitch- ell Reddick selected "because" Reddick is white included speech you hyped up Mitchell's all feel to move on —"Do people?" some white his recent discussion with —and youths racially charged other black of a scene from the "Mississippi Burning." movie This evidence was used merely to show the intentional selection of the vic- prove bigoted tim, but was used to Mitchell's bias. The physical assault of Reddick is the same whether he was attacked because of his skin color or because he was wearing Knight" big- "British tennis shoes. Mitchell's selecting thought Reddick, oted motivation for impelled his which punishment act, him to is the reason that his case, was In enhanced. Mitchell's that motivation was apparently a hatred of whites.13 commendably designed pun-

The statute thereby objectionable ish—and deter—racism and other deplorably unconstitutionally infringes upon biases, but speech. justify transgression free against The state its would right speech

the constitutional of freedom of thought good magni- one, because its motive is a but the proposed against tude of the incursion the constitutional legislature any Thus the has removed doubt that the aim of the subjective dissenting opin- statute is the actor's motivation. The ignore legislative ions recog- this clarification in their refusal upon punishes nize that the statute is focused the defendant's motive.

13While the statute as written extend to situations biased, where the actor fact is not this does not save the legislature may statute. The not subvert a constitutional free opprobrious right bigot dom —even one as as the to be a — carefully wording simply a statute to affect more than that freedom. us no more be diminished for of all of should

rights by sepa- than should a crime be enhanced good motive a criminal's bad motive.14 rate because of legislation The admits that this case involves state only The defini- address bias related crime. that seeks to A "prejudice.” tion of relevant to this case is "bias" punish personal prejudice specifically designed statute upon an individual's First impermissibly infringes carefully cleverly how rights, Amendment no matter enhances one words the statute. hate crimes statute they are punishment bigoted criminals because solely bigoted. subjective The statute is directed at the prejudice. of the actor —his or her Punish- motivation thought, thought, repugnant ment of one's however is unconstitutional.15 paved long recognized, road hell is with

14As has been the to Herbert, (1640); Jacula Prudentum good George intentions. See Johnson, Boswell, Dr. Johnson Samuel from James Life of Revolutionists; Shaw, (1791); George Bernard Maxims Aeneid poet Virgil others. Or as the latin said the a reference Averno," slope, liberally slippery to the "Facilis descensus which Ehrlich, step." Eugene means "Beware that first false translated (Guild 1987). Desperandum Nil Publishing 107 course, speech example, 15Of freedom of is not absolute. For may government regulate punish "fighting the words" that are retaliation, "likely provoke average person thereby the peace." Chaplinsky Hampshire, v. New cause a breach of the 315 568, (1942). Also, expres government regulate U.S. important governmental sive conduct where there is an interest narrowly regulation and the is tailored address that interest. O'Brien, United States v. 367, bigoted 391 U.S. The punished by thought the hate neither which crimes statute fits speech may category. bigoted occasionally While an individual's retaliation, person's provoke thought argued will not. Nor is it protected expressive that a hate crime conduct. It is not. V., In supra, R.A. 22, 1992, decided June the United Supreme States Court held that a Minnesota ordinance prohibiting disorderly bias-motivated conduct16 was facially invalid under the First Amendment. Accepting Supreme Minnesota Court's determination that only ordinance reached expressions that constituted "fighting within the meaning Chaplinsky, words" Court held that the government may not constitutionally regulate even unprotected otherwise speech on the basis of hostility towards expressed the idea speaker. R.A.V., 1992 U.S. LEXIS at In *24-28. other words, while government may regulate all fighting words, may it not regulate only those fighting words with which it disagrees. prohibition Such a is nothing more governmental than a attempt speech to silence on the basis of its content. Id. at *26.

While the St. Paul ordinance in R.A. invalidated V. clearly distinguishable from the hate crimes statute regulates it fighting merely words rather than motive, actor's biased the Court's analysis support lends to our conclusion that the Wisconsin legislature cannot criminalize bigoted thought with which it disagrees. Court stated:

Rather, person's bigoted thought, very thing punished by statute, the hate protection crimes is entitled to the full First Amendment. ordinance, Paul, Legis.

16The St. Minn. Code 292.02 § (1990), provided: places public private property symbol, object, Whoever on or a appellation, graffiti, to, including, characterization or but not limited burning swastika, or cross Nazi which one knows or has reasonable grounds anger, to know arouses alarm or resentment others on the race, color, creed, religion gender disorderly

basis of commits guilty conduct and shall be of a misdemeanor. by distinctively the con- only served interest [T]he city displaying council's limitation is that tent particular biases thus hostility towards the special Amend- precisely what the First That singled out. politicians Paul are entitled The of St. ment forbids. through means hostility express that —but speakers unique upon who imposing limitations (however benightedly) disagree. omitted).

Id. at *32-33 (footnote ideological content hate crimes statute targeted thought Paul ordi- by the St. targeted to that identical And, like discriminatory animus. or other nance —racial Court, that we conclude Supreme States the United punish ideological out and single legislature content.

Thus, facially crimes statute is invalid the hate directly punishes a defendant's constitution- because it ally protected thought.17 unconstitutionally

The hate crimes statute is also upon A it intrudes statute is overbroad when overbroad. constitutionally protected activ- amount of a substantial thought, the hate crimes stat- ity. punishing Aside from punishing of Justice Bablitch asserts that 17The dissent Delaware, permissible, upon Dawson v. 90-6704 based motive is (U.S. Court, 9, 1992), United States Supreme March wherein the Supreme of a convicted murderer's Court indicated that evidence committing murder is a relevant bigoted motivation op. inquiry sentencing. Dissenting at 192-193. The dissent is permissible wrong. it is to consider evil motive or moral Of course crime, particular quite turpitude sentencing but it is when for a underlying crime and then matter to sentence for that different separate sentence a enhancer that is directed add to that criminal solely punish the evil motive for the crime. directly punish

ute also threatens to an individual's speech assuredly chilling upon will have a effect free speech. explained As we Bachowski: language, given

A overbroad its its is when [statute] meaning, sweeping normal is so its that sanctions applied constitutionally protected be conduct permitted regulate. which the state is not The by sweeping essential vice of an overbroad law is that activity protected within its reach deters it citizens exercising protected from their constitutional free- doms, "chilling the so-called effect." (citations omitted). Bachowski, 411 139 Wis. 2d at chilling effect need not in the be evident defendant's hypothetical enough case; it if situations show that it rights Wilson, will chill the v. others. Milwaukee 96 (1980). Finally, 11, 19-20, Wis. 2d 291 "[i]n N.W.2d 452 context, the First Amendment must 'criminal statutes " particular V., . . R.A. scrutinized with care ..' U.S. 1992 (White, concurring), citing J., 3863, *63, LEXIS at (1987).18 Hill, 451, Houston v. U.S. speech may

The state as must often admits it that prove be used as circumstantial evidence to the actor's example. perfect case is intentional selection. This speech primary Mitchell's is the evidence of his inten- tional selection Reddick. The use of the defendant's speech, past, both current and as circumstantial evi- prove appar- selection, the intentional makes it dence V., disagreed analysis 18In R.A. four Justices with the majority, they judgment but concurred in the because concluded fatally the Minnesota ordinance overbroad because it expressive only "makes criminal conduct that causes hurt feel offense, resentment, protected by ings, the First Amend R.A.V., (White, J., ment." 1992 U.S. LEXIS at *58-64 concurring). protected speech sweeps within its that the statute

ent speech. will chill free ambit and any giving crime involved The criminal conduct already pun- enhancer hate crimes rise to the where this numerous instances Yet there are ishable. applied to a a misdemeanor to convert can be statute felony example, merely spoken word. For of the because battery. criminal B in face he commits a if A strikes "nigger," A word such as However, add should a. "queer," "spic," "honkey," "jew," "mick," "kraut," or punished felony, A a and will becomes the crime using alone—a misdemeanor—but for his conduct respond Obviously, spoken the state would word. merely speech A intention- an indication that that the ethnicity, particular ally or B of his race selected because necessity speech to use to remains that the but the fact prove to chill free selection threatens this intentional speech may Opprobrious though speech. be, an indi- punish- to utter it without fear must be allowed vidual ment the state. chilling goes further than course the effect

And of uttering merely deterring a racial an individual from battery. during epithet the circumstantial evi- Because required prove lim- selection is the intentional dence relevancy only by code, the evidence rules of ited every speech. As chill kind of crimes statute will hate explains: Professor Gellman person may any

In addition to words that to, speak during, just prior association with offenses, underlying all commission of one occasions, any upon books his or her remarks earlier to, read, speakers listened or associations ever ever as evidence that he or ever held could be introduced acting upon and was them at she held racist views Anyone charged with one of the of the offense. time underlying charged offenses could be with [inten- well, possibility tional as and face the selection] scrutiny public ethnic everything of a lifetime of from jokes inquiry. to serious intellectual Awareness of possibility self-censorship this could lead to habitual expression ideas, one's and reluctance to read or others, publicly listen to the ideas of whenever one might contrary popular fears that those run ideas subject sentiment on the of ethnic relations. only

It is no answer that one need refrain from committing underlying one of the offenses to avoid punishment. thought expression Chill of inquiry by any definition occurs offense before committed, and even if no offense is ever committed. The chilling popu- effect thus extends the entire lace, just eventually not to those who will commit one underlying the of offenses. Gellman, (empha- 39

Susan U.C.L.A. L. Rev. at 360-61 (citations omitted).19 original) sis in Thus, hate crimes unconstitutionally the statute is sweeps protected overbroad because it First Amendment speech thereby within its speech. reach and chills free

Finally, argument by we consider the the advanced al., ADL, by amici curiae et and embraced the dissent that an exists hate analogy between the crimes statute laws, and antidiscrimination and that the numerous Supreme upholding United States Court decisions support antidiscrimination laws lend to the hate crimes 19See, Churchill, 674, (7th e.g., Grimm v. 932 F.2d 675-76 1991) (fact arresting Cir. officer ethnic intimidation case through history heard "had his brother-in-law that Grimm had a making engaging of racial insults and racial confrontations" arrest). supported probable conclusion that officer had cause to 175 disagree. statute.20 We thing. bigotry same are not the

Discrimination and statutes, it is the discrimina- Under antidiscrimination tory prohibited. the hate crimes stat- Under act which punished act, it is ute, is not an which is the "selection" battery process. case, the act the In this was a mental punished by Reddick; the hate crimes statute what was selecting Reddick, his discrimi- was Mitchell's reason natory motive. explained above, selection under the hate crimes

As solely subjective motiva- statute is concerned with under tion the actor. Prohibited acts of discrimination Rights Title Civil Act U.S.C. VII analogous § 2000e-2, stat- state antidiscrimination utes, termination, etc., hire, as refusal to involve such objective punished acts discrimination. What is subjective penalty pro- hate enhancer is a mental crimes penalty objective cess, an act. The actor's victim, fired termi- enhanced becausé actor employment, victim, the victim's harassed nated objectively the victim or otherwise mistreated abused protected status; the victim because of victim's subjectively the actor enhanced because. protected the victim because of the victim's sta- selected simply, quite process, Selection, tus. is a mental not an objective act.21

20See, e.g., Jaycees, v. States Roberts United 468 U.S. 609 King Spalding, v. (1984); (1984); Hishon & U.S. Runyan McCrary, v. 427 U.S. 160 21 opinion dissenting The of Justice Bablitch recites that it "very complicated does understand this elaborate and distinc tion" the hate crimes and between enhancer antidis- interesting light is crimination statutes. That of the dissent's recognition applies at 200 that the statute defendant's decision," process. obviously subjective "selection an mental To

176 Finally, penal- there is a difference between the civil imposed ties under Title VII other and antidiscrimina- penalties imposed by tion statutes and the criminal contrary protesta- law, hate crimes to the dissent's tions, it is a difference that The is matters.22 difference slight that while the First Amendment countenance speech overarching incursions into free where con- protection objective bigotry cern is from acts of in the employment marketplace consequences and the adverse rights minorities, such acts on the civil the First outright Amendment will not allow the criminalization subjective bigoted thought. We have little doubt that an antidiscrimination statute which criminalized an employer's subjective nothing discrimination, with apparent more, would be unconstitutional. This schism protective perhaps in the First Amendment's shield is best understood the context of A overbreadth. statute criminalizing bigoted selection a victim will chill speech greater free to a much extent than a statute by analogous proscribed that a "decision" state to the conduct freely antidiscrimination statutes is untenable. We admit that motive, antidiscrimination statutes are with concerned the actor’s objective respect but it is the conduct taken to the victim (not punished) statutes, which is redressed those actor's motive. repeat. punish

We hate crimes statute does not act, underlying punishes criminal it the defendant's motive for acting. Taking explanation the dissent's statute con- defendant, cerned with the "decision" of the it is clear that nothing thought crimes hate statute creates more than a crime. Apparently that with dissent comfortable such an Orwellian notion; we are not. Bablitch,

22See J., n.2, n.3, dissenting, at 187 192. discriminatory penalties objective

imposing for civil acts. by sparked Angeles riots

In the Los the wake of illegally police acquittal officers accused of four of white Rodney increasingly King, beating it motorist black preva- antagonism violence are as evident that racial they Indeed, to the been. added now as ever have lent compilation of crimes could bias related statistical Denny by Reginald beating of white truck driver vicious horrifyingly captured rioters, on film a news black deplorable helicopter. disgraceful as these and As personal prejudices are, other hate crimes protected by The the First Amendment. attackers are encourage bigoted and constitution not embrace or protects surely thoughts, it them. hateful but wholeheartedly agree we with the motiva- Because legislature suppress in its tion of the desire to hate regret great crimes, it that we hold the hate is with only unconstitutional —and because we crimes statute greater suppression is the of freedom believe that the evil speech for all us. By appeals the Court.—The decision of the court of court, the cause remanded the circuit reversed and resentencing battery aggravated conviction. on (dissenting). ABRAHAMSON, J. SHIRLEY S. Today, 939.645, Stats. this court concludes sec. holding 1989-90, unconstitutional, that it violates the right speech.1 First Amendment to freedom any govern- Constitution teaches mistrust speech regulation expression. I been in ment Had legislature, supported I I do not believe would have I not think this this statute because do statute will 1 1991 Act 291 is not before us. Wis.

accomplish goal. I its would direct the state's efforts to protect people from invidious discrimination and intimi- judge, however, dation other As into channels. a after vacillation, much I conclude this law should con- narrowly strued and should be held constitutional. presents very question This case difficult involv- ing convergence competing of three societal val- equal speech, rights, protection ues—freedom and against crime. speech right

Freedom of is the most treasured in a society. protects free, democratic Our constitution our right speak think, and write as we wish. This freedom expression encompasses speech, pleasant all or unpleasant, popular unpopular. expressions or Even protected. bigotry history are Our constitutional makes expression country clear that hostile to the values of our speech, suppressed should be more addressed with police power. with recognizes

Nevertheless, our law the harmful effects of invidious classification and discrimination. We acknowledge that when individuals are victimized religion, status, their because of as such race or resulting greater harm is than harm that would have by injurious been caused In conduct alone. addition injury may feelings inflicted, the victim suffer inability enjoy rights fear, shame, isolation and opportunities persons. that should be available to all group Furthermore, all members of the to which the belongs may victim suffer when the individual victim- ized. The state has determined that harms inflicted religion race, color, creed, because of or sexual orienta- pressing public tion are more concerns than harms. other legitimate, justifi- The state has reasonable and neutral people.2 protection "In of certain for selective cations painful long experience light with of our Nation's plainly discrimination, reasonable. this determination compelling compelling."3The has a ... state Indeed it discriminatory invidiously combating con- interest viewpoints duct, is linked to even when the conduct protected by the First Amendment. otherwise compelling government addition, inter- In oür has person peace, protecting preserving each est in from the of crime. from crime and fear only those crimes com- Section 939.645 addresses religion, color, "race, of" the victim's mitted "because disability, origin orientation, national ances- sexual ” persons try. punish all committed It does not crimes expressed bigoted An individual have beliefs. who may pos- same individual commit a criminal act. That express bigoted standing beliefs. These two facts sess or subject punish- however, alone, do that to not individual under 939.645. ment sec. my tight mind,

In is the nexus between the selec- it underlying tion the the crime that of victim and saves prove beyond this statute. The state must a reasonable underlying that the committed the doubt defendant both intentionally crime and the the that defendant selected protected of under victim because characteristics prove victim, To intentional selection of the statute. bigoted state cannot use evidence that the defendant has bigoted beliefs or has made statements unrelated to the particular person's or crime. Evidence of traits beliefs permissible purpose proving would not of person conformity particular in acted therewith on a — — Paul, City

2R.A.V. v. St. 3863, 1992 U.S. LEXIS U.S. (June 22, 1992) (*67, *81-*82, Stevens, J., concurring). — — Paul, City 3R.A.V. v. St. 1992 U.S. LEXIS U.S. (June 22, 1992) (*51, White, J., concurring). requires occasion. The statute the state to show evidence of bigotry relating directly to the defendant's intentional particular upon selection of this victim whom to commit charged The directly crime. state must link the bigotry invidiously defendant's to discriminatory selection of the victim the commission of the underlying crime.

Interpreted in I way, this believe the Wisconsin discriminatory statute ties selection of a victim to con- already duct punishable by state suffi- law a manner prevent cient to erosion of First protection Amendment of bigoted speech and ideas. narrowly intended,

Read legislature as the this stat- prohibition conduct, ute is a on on expres- not belief or sion. The nothing statute does assign more than conse- quences invidiously discriminatory acts.

The state's interest in punishing bias-related crimi- only protection nal equal rights conduct relates to the crime, prevention suppression and the expression. punishment free The justly enhanced reflects negative consequences society. crime's enhanced on interpreted prohibits Thus the statute intentional con- duct, not expression. only chilling belief or The effect is on lawless conduct.

Bigots express are free to think and themselves as wish, they except they may engage criminal conduct furtherance of their beliefs. Section 939.645 punish speech. does not abstract beliefs defen- speech only dant's or as they beliefs are relevant relate directly to the commission a crime. The Supreme United States recent Court’s decision — City Paul, in R.A.V. v. St. 1992 U.S. LEXIS — (June 22, 1992),

U.S. persuaded has not me V., In R.A. contrary. Supreme Court held unconstitu St. prohibiting placing pub- tional a Paul ordinance "on appellation, symbol, object, private property a lie or graffiti, including, to, limited but not characterization or burning swastika, or which one knows cross or Nazi anger, alarm or resentment has reason to know arouses religion color, race, creed, in on the basis others opinion majority gender . in R.A.V. ruled the . .." The facially because, even assum- unconstitutional ordinance ing only regulated words," "fighting that ordinance the content of the ideas was based on ordinance concurring justices expressed by The a defendant. four ground on unconstitutional that found the ordinance prohibition fighting an overbroad the statute was words.

R.A. V. not control this case. Section 939.645 is does validity ordinance; Paul its not similar to the St. does rely "fighting on words" The defendant doctrine. charged statute, in 609.2231(4), sec. R.A.V. was also under state 1990, much similar Minn. Stats. more ordinance, sec. than the St. Paul but the defen 939.645 challenge charge. dant did not forth, I For the reasons set dissent. (dissenting). BABLITCH, A. WILLIAM J. everywhere burning, sharp-shooting the crosses are corner, every snipers around there are goose-steppers (I you in the ... know don't believe this. You schools nothing exaggeration. But think this but faddish they shooting you.) at are Dee

Lorna Cervantes1 question speech" is not law a "hate law. 1Cervantes, Young Poem for White Man Who I, Intelligent Asked Me How An Well Read Person Could Believe Races, Sanchez, Contemporary Chi the War Between M. Poetry 90 cana really

Nor is it a "hate it crimes" law as has been inappropriately somewhat named. against

It is a law discrimination —discrimination in the selection of a crime victim.

Today majority decides that the same Constitu- protect tion which not in does discrimination the mar- ketplace protect place does discrimination that takes during the commission of crime. Numerous federal and prohibit state laws exist which in discrimination promoted. hired, fired, selection who to be or or No (at seriously today) questions one tutionality. least until their consti- majority gives today Yet constitutional protection to in discrimination the selection who is be the victim a Both of crime. sets laws involve dis- crimination, victims, both involve both action involve "because of" the victim's status. says majority in there is a difference the two They

types wrong. support of laws. are There is in no law position. logic or for their How can the not Constitution protect discrimination in the victim for selection of a discriminatory hiring, firing, practices, promotional protect and time in the at same discrimination selec- activity? tion for criminal of victim How can the Con- protect performance discrimination in stitution of an protect illegal perform- act in discrimination legal an act? can ance of otherwise How the Constitution protect marketplace discrimination when the status, of" action taken "because the victim's and at protect the same time discrimination a street or back alley when the criminal "because of” the action taken victim's status? pure against discrimination,

These are laws simple. disagree meaning Dictionaries do not on the distinguish, differentiate, the term discrimination: forbidding prejudice. on to act the basis Laws discrim- marketplace forbidding discrimi- and laws ination activity have a common denominator: nation in criminal person they triggered acts "because of" the when a are appear protected in exact words status. These victim's most, laws. These exact if all antidiscrimination today. appear in us the laws before words says majority constitutional, one is one is Yet the sophistry distinguish pure the to two. not. I submit it protect speech, majority's constitu- In its to effort gets pien see too close the trees and fails to tional to forest. majority rationalizes their conclusion insist- punishes bigoted thought.

ing Not so. that this statute impede punish right per- or The statute does not express bigoted thoughts or to sons have themselves to bigoted regarding otherwise, race, or in a fashion attempt religion, person. status of a It does to other punish bigotry. limit the effects of What the statute does upon thoughts. punishes acting It those act discriminatory plus conduct, criminal selection expression bigotry. thought or The Constitution person thoughts express bigoted to and to allows a have person them, it allow a to act on them. The but does not says disagree. majority I otherwise. question vague

I conclude the statute is neither equal protection. overbroad, nor nor does it offend Accordingly, I dissent.

n —1 Examples shocking making bias related crimes recently headlines include: woman, rips man a off white assaults black [A] clothes, and, lighter yelling her her douses with fluid 'nigger', on fire. threatens set her suburb, According police Washington a capped night a young attack which two white men planned revenge to hunt blacks in for being down 'honkies', derogatory called term blacks use for whites.

They pounced walking on two black women shopping early in morning. towards a centre One escaped beaten, help, ran the other was stripped nearly naked, sprayed lighter with fluid. Debusmann, Washington, Hate Crime Shocks Bernd Problems, Reuters, Shows Race March 1992.

In Kentucky September, this assailants beat a young iron, gay tire man with a locked him into a car snapping trunk with bunch turtles and then tried set the car on fire. He was left with severe brain Recurring Nightmare Peirce, damage. R. Neal of Crimes, Hate Journal, 15, 1990, National December States; p. at Section 22 State Vol. No. 50 3045. Jefferson, year-old high a Amber 15 school Calif., Orange County, cheerleader her almost lost life because that fact she has one white and one parent. attackers, white, allegedly Four black all beat split her with open a baseball bat and her face with a plate glass. Surgery shard of fix the wounds took years 10 hours. be regains It will two before she mus- Id. cle control in her face. boys Valley

The High typically 120 at Torah spend day college prep half their school classes and in religious half instruction. past

But for week—since their school was swastikas, painted symbols Ku with Klux Klan and they getting Jewish have been an education slurs— Stewart, 'Litany Sally Hate Crimes: hate. Ann shame' Incidents on rise in California, Today, USA 13, 1992, March at 3A. reprehensible

Wisconsin has also not been immune from incidents of bias related crime: erupt regularly, at attacks even

Anti-Semitic enlightened progressive, institutions supposedly such (Madison), University where a as of Wisconsin pelted been with rocks and Jewish student center has Jewish fraternities sororities bottles where Counselors at a Madison Jew- have been vandalized. day camp linings had ish discovered that brake transport on bus used chil- been cut A fortunately was used. before bus dren — repeated after inci- synagogue, Madison anti-Semitic a time. Recur- dents, kept guard under armed was Crimes, Journal, ring Nightmare Hate National 1990, States; 15, December at Section State p. Vol. No. 50 3045. legislature

In acted to alleviate the Wisconsin response legislature's bias crime. Wisconsin related Stats., 939.645, enhances was to enact séc. which if the perpetrator receives State Wisconsin (State) intentionally selected proves perpetrator that the color, race, religion, because of the victim's victim other protected status.

I majority's first address Mitchell's and the over- A when its lan- argument. breadth statute overbroad guage, meaning, its normal its given sweeping so applied the state is sanctions to conduct which Salamone, permitted regulate. Bachowski v. 397, 411, Wis. 407 N.W.2d 533 "The essential 2d by sweeping protected law vice an overbroad is that exercising reach it citizens from activity within its deters freedoms, the protected their constitutional so-called " An challenge effect.' Id. 'chilling overbreadth hypothetical speculation require does based on and not presence the of a effect" in the defendant's "chilling Wilson, 11, particular case. Milwaukee v. 96 Wis. 2d (1980). 19-20, 452 has held 291 N.W.2d This court also

186 we possible interpret that where must a to statute avoid Bachowski, invalidity. constitutional 139 Wis. 2d at 405. I conclude that the First is not impli- Amendment However, cated this case. the concluding that chal- I lenged lightly statute do is constitutional not take the First issue Amendment that Mitchell has raised. "If principle underlying there is a bedrock First Amend- ment, the government may prohibit it is that not expression simply society of an idea because finds the Johnson, itself or disagreeable." idea offensive Texas v. 397, (1989). U.S. 414 491

I reject majority's argument Mitchell's that Stats., 939.645, punishes or chilling sec. has a effect on speech. penalty free enhancement is statute directed selecting at action or conduct of a victim com- mitting against crime that victim of his or because her protected The gravamen status. offense selec- tion, perpetrator's speech, or thought, even impede punish motive.2 The statute does not the right majority's 2One of the chief to be contentions seems that the punishes Although statute is it I unconstitutional because motive. motive, did, punishes not think this if do that statute it I even punish majority's serious about the have doubts conclusion that ing impermissible motive is under the First Amendment. The authority majority support punish cites no its conclusion that fact, ing impermissible motive In under First Amendment. majority explain why, imper analysis, its it is fails to under punish for the missible enhancer statute discrimina motive, yet permissible tory statutes for antidiscrimination See, e.g., Rabidue v. Osceola discriminatory punish a motive. Co., (1984), aff'd, Refining Supp. F. 424-425 805 F.2d 584 denied, (1987) (6th 1986), ("it cert 481 U.S. Cir. merely pre-discharge company's concluded conduct plaintiff anti-female Absent toward was based on animus. animus, VII"); E.E.O.C. v. can be no of Title such there violation Co., Maxwell commenting 726 F.2d 282 In fact one writer express or to themselves thoughts to have persons of race, person. or of a other status regarding religion, the plus pur- with conduct The is criminal statute's concern penalty, By penalty the enhancing poseful selection. severely criminals who punishes statute more enhancer legislature has determined is a more what the act with injure just an intent not to depraved, antisocial intent: pick injure person a because intentionally out and but person's legislative status. concern protected óf a motives, beliefs, in expressed this statute is not with or her action of speech perpetrator of a but with his or plus criminal conduct. purposeful selection by Admittedly, prohibited the conduct proven by can an extensive combi- enhancer statute words uttered might nation of facts that include analysis complete majority's odds on Title VII at with He motive under the criminal law. writes: perceived passed Congress VII because that actions Title was sufficiently thoughts pervasive resulting from were to substan- bad is, tially opportunities thoughts' blacks. 'Bad limit economic course, range shorthand for a of interior activities which are wide liability. necessary predicate disparate A for treatment more com- considerations,’ ’prohibited thoughts' terminology mon but ’bad disparate graphically more what entails. describes treatment peculiar disparate thoughts is The notion of bad treat- played important role ment discrimination under Title VII. It has an Court's decisions over the last two decades constitutional protection ranging equal speech contexts from freedom religion. new in law. law Nor such concern Modem criminal always has manifested concern motivations under the rubric context, however, In are mens rea. the discrimination motivations important both more and more than because elusive criminal law violating positive except VII is when it 'conduct' Title neutral context, thoughts. springs prohibited from bad In the criminal much Sullivan, suspect. Accounting is itself A. Price conduct Charles For VII, Proving Disparate Waterhouse: Treatment Under Title Brook- lyn 1107,1139-1140 L. Rev. However, if defendant.3 words are used to prove crime, are subject the words uttered not the of the statu- rather, tory prohibition; they only are used as circum- prove stantial evidence to intentional selection. Per- mitting use of such chill evidence does not free speech. as words are frequently Just of defendants used prove many element of intent crimes without Amendment, violating the First words be used to prove of the act intentional selection. It is no more a speech free chilling prove of to allow words to act selection in this intentional "intentional stat- selection" ute than it is to allow a words he defendant's "hated John he prove Smith and wished were dead" to a defen- intentionally dant murdered John Smith.

The of speech penalty use under the enhancer in prosecutions different its use than under antidis- essentially majority speech 3The contends that the use of as impermissibly speech. circumstantial evidence chills free Once again majority explain why fails this is true in not also example, antidiscrimination cases. For under VII Title sexual jurisprudence, employee's employer's an harassment sexist conduct; speech merely prohibited is not evidence of it is the Co., prohibited See, e.g., conduct. Zabkowicz v. West Bend 589 F. 780, (E.D. 1984) (in Supp. three-year period, Wis. 782-83 sexually pillars conspicuous explicit drawings posted on and other places Coler, 1422, workplace); in the Volk v. 845 F.2d 1426-27 (7th 1988) (plaintiff alleged, among things, Cir. other that her supervisor employees 'hon,' 'honey,' called her and other female 'tiger.') City Philadelphia, v. 'babe' and Andrews 895 F.2d 1469, 1485 (3d 1990) (pervasive derogatory Cir. insult use of ing relating generally terms to women and addressed to female employees personally may be to show work sufficient a hostile environment). Inc., Shipyards, See also Robinson v. Jacksonville 1991) (M.D. Supp. ("pictures 760 F. Fla. and verbal protected speech they harassment are not discrimi because act as environment"). natory conduct the form of a hostile work laws. housing fair discrimination laws or crimination employ terms similar statutes often Antidiscrimination instance, penalty in the enhancer. For those contained 66.395, Stats., all 118.13,111.321,101.225, pro- secs. of" or that occurs either "because certain conduct hibit of" another or "on the basis a status of account of" "on will often person. of these Proof violations statutes these proof the violators. Under involve words used enhancer, particular action or and the statutes speech may be used to being punished, and conduct statute, prove penalty enhancer the conduct. Under the probative of intentional simply element speech use does violate the of such evidence selection. The selection is First action intentional Amendment. punished, merely a defendant are and the words used selection. evidence of an intentional attempts distinguish to this Although majority the statutes, antidiscrimination its distinction is statute and a a The at 164 majority without difference. .distinction penalty the enhancer statute is unconstitu- states that the punish only because the statute does not con- tional of intentional selection of a victim statute duct "[t]he punishes aspect the the defendant's selec- 'because tion, . . .." the reason the defendant selected the victim 176-177, pages majority reasoning On the abandons this applied majority laws. when antidiscrimination The posits penalty the enhancer that the distinction between statute and antidiscrimination laws that antidis- discrimination, i.e., punish only laws the crimination the hire, discriminatory The refusal motive. requirement a majority forgets key of antidiscrimination prohibit Antidiscrimination statutes do not statutes. class, person protected not hiring from someone of a prohibit person they hiring from someone of a protected class because or on the basis his or her protected majority suggests, not, class. It is as the being punished, failure to hire that is it is the failure to majority hire because of status. How can the find the penalty statute unconstitutional because it .enhancer punishes aspect process, the "because of" of a selection and at the same time conclude that antidiscrimination thing, statutes, which do the same are constitutional? majority ought question. The at least to answer this majority attempts explain very also its com- plicated and elaborate distinction between this statute and antidiscrimination laws based on some sort of differ- subjective objective ence between Although motivations and acts. quite majority's I do not understand the use of objective subjective the terms in the context of this interpret majority's argument case, I to be that this punishes statute is unconstitutional because it the sub- jective actor, motivations of the while discrimination objective statutes involve acts of discrimination. This is merely the same distinction without a difference referred statutes, to above. Like antidiscrimination "objective enhancer statute involves an act"—the crimi- e.g., battery, despite conduct, Likewise, nal majority's etc. contrary, major- contentions to the under the ity's analysis they statutes, antidiscrimination because require protected that the act be "because of" the status implicate punish subjective victim, motive example, disparate of the actor. For in treatment cases (cases alleged in which the discrimination is overt dis- opposed disparate impact crimination as to where the practices discriminatory opera- form, in are fair but tion) person simply a does not violate Title VII for refus- ing person protected objective to hire a of a status. The provisions act alone does not invoke the of the statute. Rather, the refusal must be "because of" the victim's protected Assuming majority status. that is correct explain punishes motive, it fails how

ttíat this statute any is different from antidiscrimination the enhancer laws. majority is correct that the

If that the one assumes punishes only penalty is dis- there one enhancer motive it antidiscrimination laws. The between and tinction only exists between the distinction that is statutes that enhancer statute and antidiscrimination punished objective are are different that acts that punish legal plus conduct bad antidiscrimination laws punishes plus motive the enhancer criminal conduct distinction, it that is a bad motive. While is true this explains why majority mat- it a distinction that never is punish permissible Why it it motive when is ters. pun- accompanied by legal impermissible conduct and accompanied by illegal ish it is conduct. motive when majority question, give does an answer to this it merely makes that the distinction somehow concludes Saying again again, so, does not make it difference. so. majority

Lastly, assuming that correct in even saying punishes motive, still this it has that statute why explain punishing impermissible. failed to motive Supreme A Court recent from the U.S. would seem case majority is in In to indicate that the error. Dawson v. (U.S. slip. op. Supreme 90-6704,

Delaware, at 5 Court 1992), Supreme March the United States Court held per "the that Constitution does erect se barrier to concerning the admission of evidence one's beliefs and simply sentencing associations at because those beliefs protected Amend- and associations are First Although ment." under the facts of Dawson the Court violation, that there was a First Amendment concluded analysis support to the its lends considerable conclusion considering perpetrator's deter- motivations permissible. mining appropriate sentence For in evidence example, concluding that that defendant Aryan impermissibly was belonged to the Brotherhood penalty phase capital of a case in during submitted Amendment, violation of the First the court stated: group if Even the Delaware to which Dawson racist, beliefs, allegedly belongs is those so far as we determine, sentencing can had no relevance to the proceeding example, Aryan in this case. For any way Brotherhood evidence was not tied to the Barclay, murder of Dawson's victim. In on the con- trary, the evidence showed that the defendant's membership Army, in the Black Liberation and his war,' consequent desire to start a 'racial were related U.S., to the murder of a white hitchhiker. See at opinion). (plurality 942-944 We concluded that it proper sentencing judge was most for the to 'tak[e] elements racial hatred in this into account the. Id., case, however, murder.' present at 949. In the white, Dawson; as is elements of murder victim was kill- racial hatred were therefore not involved Delaware, 90-6704, Dawson v. ing. slip. op. at 6-7 9, 1992) (U.S. (Emphasis Supreme March Court added.) clearly Supreme indicating

The U.S. Court is that when crime, i.e., the racial racial hatred is relevant to the perpetrator's committing hatred is the reason for crime, completely this information is relevant sen- punish- tencing. majority suggest How then can the ing impermissible? motive is 939.645, Stats., is not concerned repeat.

I Section intentional speech thought. It is concerned with with person's operative just becomes when selection. It selection, discriminatory rather but speech evinces the protected class is anytime choice of a victim from a random, discriminat- than rather shown to be selective designed ing indiscriminate, than or rather rather than happenstance. to does not seek statute also enhancer perpetra- perpetrator.

punish Neither a of a the motive bigoted beliefs, her motivation for inten- nor his or tor's tionally protected

selecting status of a a victim because selecting punished. Again, a victim it is the act of are pro- color, etc., race, is or that of his or her because person perpetrator to If seeks out a Jewish scribed. just injure, physically to assault, intent is not to but his may by person. injure motivated a hatred He a Jewish calling people, Jewish from God to sacrifice a Jewish person, motive. This law does some other irrational or why the not look at to motive. This law does not look only person. sought perpetrator It looks to out a Jewish was Jewish was a sub- the fact that the victim whether purposeful in defendant's choice of stantial factor the victim. present

Similarly, case, if even under the facts of the was not a hatred of show that his motive Mitchell could punishable whites, under the his conduct would still be points out, could As the State Mitchell's motive statute. boys accompa- impress group have been to apply. Nevertheless, Its him. the statute would still nied bigoted Rather, it focus is not on or hateful motivations. intentionally punishes selecting on the action of a victim protected status listed the statute. As the basis of a emphasized arguments, at the term Mitchell himself oral "hate crimes" statute is a misnomer. The crimes that fall by many emotions; under the statute be motivated prohibited. The stat- the intentional selection is what is many ways intent, ute looks at and statutes are used differently perceived punish seri- crimes based on perpetrator. example, an ousness of the intent of the For kill punished greater intent is than an intent showing Likewise, disregard utter for human life. a reckless punished showing intent is less than an intent utter disregard for human life. 939.645, Stats., attempt prohibit

Section does not antisemitism, punish or bigotry, or the like. It does attempt to limit their effects. An individual's freedom to express writing, speech, his or her views or otherwise regulated pro- or chilled this statute. What is intentionally the act of selecting hibited is victims their'protected Why because of status. a Black aor Jew- person any person ish protected other of a class was chosen as the victim not relevant. What is relevant that is intentionally the victim chosen because of the protected victim's status. 939.645, Stats.,

I legitimately reg- conclude that sec. conduct, ulates criminal and raises no issue under the punish speech, First Amendment. It does thought, or motivation, even nor sweep does it within its ambit actions constitutionally protected which are as to render unconstitutionally it overbroad. necessary equal vagueness

It to discuss the and issues, they by protection though even are not reached by I majority. These issues are raised Mitchell. opportunity therefore take this to address each issue. legislative attempt Mitchell asserts that this to alle- unconstitutionally vague. Spe- viate bias related crime is cifically phrases "intentionally he contends that selects," of," "race," undefined, vague, "because and are Thus, that, ambiguous. argues they he lead to erratic I prosecutions. disagree. convictions and unfair 195 "unconstitutionally vague if it fails to A statute proscribe proper it seeks to of the conduct notice afford arbitrary encourages and con- and erratic arrests ifor it (foot- Wilson, 2d at 16 v. 96 Wis. Milwaukee victions." omitted). repeatedly indicated This court has note " vagueness underlying principles doc- the void for [t]he process." concepts procedural due . .. stem from trine Popanz, 166, 172, N.W.2d 750 112 2d 332 Wis. State v. vague survives a a statute determine whether To analy two-part applied challenge, has this court ness sufficiently give definite to First, must be the statute sis. ordinary intelligence persons who wish to abide proscribed adequate Second, conduct. notice of the law adequate provide for those standards must the statute adjudicate guilt. See State v. enforce the laws and who McManus, (1989) 113, 135, 2d 447 N.W.2d 654 152 Wis. King, City (citing 532, 546, Creek v. 148 Wis. 2d Oak (1989)). "However, a statute need 285 436 N.W.2d clarity precision is and what with absolute define Hurd, v. Wis. conduct." State is not unlawful what (Ct. 1986). App. 266, 272, Further 2d N.W.2d challenge vagueness more, it is not neces to survive a precision sary, of mathematics "for a law to attain Wilson, 16. v. 96 Wis. 2d at . . .." Milwaukee science analysis vague under a summarized its This court has challenge ness as follows: to void a criminal stat-

Thus it is not sufficient merely regulation to show that the boundaries ute or hazy, proscribed conduct are somewhat of the area of clearly clearly into what is that what is lawful shades by may particular degree, or that there exist unlawful illegal legal conduct or nature instances of may ascertainable with ease. Before which not be vagueness, may invalidated for statute or rule appear ambiguity uncertainty there some must in gross duty imposed outlines of the or conduct prohibited such that one bent on obedience region proscribed discern when the conduct is neared, or such ascertaining the trier of fact in guilt relegated creating or innocence is apply- ing culpability its own standards of rather than applying prescribed in standards the statute or rule. Courtney, State v. 705, 711, 74 Wis. 247 N.W.2d 2d failure, Mitchell's first contention is that phrase statute to "intentionally define selects" ren- ders the statute unconstitutionally vague because it is easily not a term by ordinary persons understood who law, by wish to provide abide and fails to adequate provisions. standards for enforcers of I I disagree. its phrase conclude that "intentionally selects" is suffi- ciently provide prohibited definite to notice of conduct persons ordinary intelligence who wish to abide adequate the law and standards for those who enforce adjudicate guilt. the laws and "intentionally" easily

The word is a word that "Intentionally" purpose understood. means a to do the thing specified. Lay persons or cause the result of ordi- nary intelligence scurry do not need to to their dictiona- meaning ries order to understand the of this well easily recognized and understood word. stranger

Nor this a word that is a to law enforce- officials, juries. "Intentionally" ment judges^ 939.23(3), defined the criminal code at sec. Stats.: 'Intentionally' pur- means that the actor either has a pose thing specified, do or cause the result or is practically aware that his or her conduct is certain to addition, except provided In cause that result. as (6), knowledge sub. the actor must have of those facts necessary her crim- to make his or conduct which are the word set forth after inal and which are 'intentionally'. particularly statutes, criminal stat-

The Wisconsin replete acts, or utes, references to "intentional" with are "intentionally." e.g., See, sec. acts or conduct done Stats, (whoever 939.051(b), intentionally aids and abets princi- charged as a of a crime the commission pal); (person privileged to threaten or 939.48 sec. purpose intentionally against use force another for the defense); ("[w]hoever knowing the self sec. 940.07 any intentionally propensities allows it vicious animal .."); 7.37(5), go large 19.58, 12.13, . . see also secs. at 20.927(4). 26.05(3)(b), 26.14(8) Unquestionably, and law judges, juries quite capable officials, are enforcement applying to varied situations the resolu- word legal tion of a case.

Likewise, the word "selects" well understood easily defined. "Select" means "to choose from a number distinguish- group fitness, excellence, ... or other ing . . .." Webster's Third New International feature Dictionary appeals As the court of con- phrase "intentionally meaning cluded, the selects" purposely pick easily discerned. It means to choose or phrase "intentionally I that the out. conclude selects" is sufficiently persons ordinary intelligence clear to practical guide law-abiding for afford behavior and is capable application by responsible enforcing those the law. appeals, appeared

In the court of Mitchell to make vagueness respect argument an alternative with to the phrase "intentionally appeals selects." The court of explained argument his as follows: pur- 'intentionally means to

Assuming selects' that out, apparently argues that the posely pick Mitchell applied. If we understand ambiguous as is still term underlying correctly, the ratio- argument Mitchell's the term 'intention- attention to nale for Mitchell's Any an accused is a different ally this: time selects' is victim, be viewed as a alleged it can race than the penalty use of the enhancer suitable for 'hate crime' victim way to whether the there is no discern since of other picked because of race or because was out statute, very the fact that this reasons. Under particular victim was picked that the out indicates Therefore, 'intentionally selected.' Mitch- was victim 'knows' the argues long so as the accused ell that race, color or a a different victim is of a different subject to the religion, will be the accused different claims, by prosecutors This, its use he allows statute. Mitchell, ány guidelines. State v. police without (Ct. 661-62, App. 473 N.W.2d Wis. 2d 1991). appear to have abandoned not

Although Mitchell does in slightly have framed it he seems to argument, this argue that appears Mitchell now different terms. indicate to what because it does vague statute is perpe- must affect the protected status extent a victim's stat- implicate decision order selection trator's meaning words, argues he that because In other ute. not ascertainable vague of" is phrase "because the statute is application a fair ordinary person, by an any an likely applied time it will impossible, and I do not the victim. race than is a different accused agree. operative that the appeals

I with the court of agree is of not whether the in the statute are terms victim "race," protected status. or other "color" or different the victim was Rather, are whether operative terms picked purposely "intentionally out selected" color, is of race, "If a victim etc. victims of" the "because perpetrator, that fact alone . . . than the race a different Mitchell, to be used." enhancer will not allow important is whether 2d at 662. What 163 Wis. picked perpetrator his or her because of out the victim key of" because selection is the "intentional race. The protected status. the victims language reject that contention

I Mitchell's "intentionally with fails to define because of" selects proscribed. specificity I which is the conduct sufficient again " emphasize Constitution does '[T]he required impossible require standards'; is that all that sufficiently warning 'conveys language as to definite the by proscribed measured common when the understanding conduct " practices Bachowski, . ..' 139 Wis. . and (citing States, 476, v. United 354 U.S. Roth at 410. 2d ordinary (1957)). Giving phrase "because of" its meaning, Whittrock, State v. 119 Wis. see commonsense by common 664, 670, measured 350 N.W.2d 2d understandings practices, I conclude that where protected in the factor status a substantial victim's perpetrator's decision, the. enhancement stat

selection applies. ute "because of" mean to construe

It is unreasonable applies color, race, or the like statute where that the perpetrator's only in minimis factor minor or de light in decision. Such a construction selection below) (see legislature's III Section would be rationale be reasonable to construe absurd. Nor would it only applies phrase race, when that the statute to mean perpetrator's in color, like is the sole factor or the Legislatures seldom, if realize that decision. selection people or consideration. ever, act based on one factor do people's largely Rather, a multitude conduct is driven varying impacts have on their decisions. of factors which reading A liability the statute is that it creates reasonable protected status, where "but for" the victim's perpetrator would not have selected the victim for Thus, I conclude the victim's status must be a the crime. in substantial factor the selection decision to the extent perpetrator that in the absence of that status the would not have selected the victim. legislature's

I conclude that the use of the therefore although per- of," 939.645, Stats., in sec. words "because haps precisely possible, conveys not as drafted as "suffi- ciently warning proscribed definite as to the conduct" to vagueness challenge. Furthermore, withstand a Mitch- plainly prohibited ell's conduct falls within the zone of Gregory statute, as there is no doubt that Reddick's in race was a substantial factor Mitchell's selection of him as his victim.4 vague

Mitchell also contends that the word "race" is ambiguous. agree I the State that it is difficult with argument in this the basis of defendant's determine regard. argument, I court construe Mitchell's as did the any challenge might has waived he have had

4The defendant propriety jury given How to the instruction this case. ever, waived, if it the defendant would be hard even were pressed given in him that the instruction this case caused show harm. The instruction this case indicated that order for intentionally jury selected the to conclude that the defendant they victim of his race must conclude "that the defendant because Gregory Reddick was a member of the white race and knew that battery aggravated against him for the crime of the committed a member of that race." While this instruction reason that he was given jury impression had have that the victim's race decision, in it cer to the sole factor the defendant's selection tainly give impression finding that race was that a did penalty trigger anything less than a substantial factor would statute. enhancer ordinary intelligence persons appeals, do to be and between the terms "race" the difference

not know argument has no merit. "color." This persons ordinary believe that I find it difficult to intelligence the word "race" not understand what would difficulty Furthermore, under- if there were even means. standing in the terms "race" literal difference in "color," the statute. Selection both are terms covered by prohibited color is the statute. because of race or ordinary intelligence people Therefore, if understand they parameters general term, have fair of either prohibited. notice of the conduct that suggests unconstitu- that the statute is Mitchell also judges, authorities, tional because law enforcement penalty may may pursue juries enhancement or prejudices or views on their own under the statute based religion, etc., race, of the victim or toward the argument I to be a con- understand Mitchell's defendant. challenge vagueness, i.e., because based on stitutional vague, law enforcement officials will use the statute is argument prejudices apply the statute. This their own to is meritless. sufficiently above, clear I concluded the statute is

As persons ordinary intelligence provide adequate they laws, who enforce the such that standards for those relegated creating their own standards. will not be responsibility to determine The law enforcement proscribed by the enhance- whether the conduct proven particular can be case is no ment statute routinely more difficult than similar determinations enforcing Furthermore, officials the law. made improper jury prosecutorial potential bias and abuses protect present many Safeguards cases. exist to example, against these abuses. For this court has prosecutorial charging if decisions to determine reviewed there has been an abuse of discretion discriminatory prosecution. See State v. Karpinski, 599, 609, 92 Wis. 2d (1979). 285 N.W.2d 729 This court has held prose that a cutor's prosecute decision to may not deliberately upon unjustifiable based an race, standard such relig as ion, State, classification. Sears v. arbitrary or other 128, 134, Wis. 2d Thus, N.W.2d 785 discrim inatory abuses can law; be dealt with through other its potential does not render a vague. statute

The last contention made Mitchell concerning vagueness is that the provide statute does not standards help law enforcement determine what evidence can be prove used to a violation of A the statute. statute does not have to dictate in regard rules to admissibility of in any case, evidence. Just as other the Wisconsin Rules provide of Evidence comprehensive guide for law Hypothetical speculation enforcement. as to how far person's back into a prosecutor life a prove can delve to the prohibited conduct of intentional selection does not render the statute unconstitutional. The rules of evi- dence which relevancy provide deal with adequate stan- guide dards to law enforcement in determining appropriate nexus between alleged evidence and miscon- duct, such that the evidence is admissible. See Wiscon- 904.01, 904.02, sin Rules of Evidence and 904.03. I conclude that legislature has defined the con- proscribed by 939.645, Stats., duct sec. with sufficient specificity to meet requirements constitutional with respect vagueness. law clear its terms and its meaning. (i.e., race, When the protected victim's status etc.) religion, is a substantial factor the defendant's purposeful victim, choice of a the statute becomes operative.

III. equal protection I chal- Lastly, discuss Mitchell's 130-31, McManus, 2d at this In 152 Wis. court lenge. protection: respect equal with summarized law protection requires . a Equal . . that there exist practical grounds classifi- for the reasonable [sic] protection legislature.... Equal cations drawn deny power persons riot a to treat does state differently; rather, jurisdiction its the state within to create so broad discretion classifications retains a basis. long as the classifications have reasonable statutory in fact a classification results some The however, provide inequity, sufficient does legislative grounds invalidating a enactment. (Citations omitted.)5 in question impinge

If does not on a the statute funda- suspect right mental or create a classification based on a " criterion, legislative enactment 'must sustained 'patently arbitrary' it is no unless and bears rational " relationship government to a interest.' Id. legitimate Equal of the 5The Protection Clause United States Constitu provides: tion deny equal any person jurisdiction No state shall... within its XIV, 1,

protection of the laws. Amendment United States Section Constitution. Equal Protection Clause Constitution Wisconsin Provides: people equally independent, All are bom free and certain and have life, liberty rights; among pursuit hap- inherent these are and the I,

piness. ... Article Section Wisconsin Constitution. equal protection court has This held that clause respec- equivalent Wisconsin Constitution is the substantial of its in the See ex rel. Cresci tive clause federal constitution. State v. 400, 414, Department, (1974). H&SS Wis. 2d 215 N.W.2d 361 (citation omitted). "If the classification is reasonable practical objective, relation to the is suffi- cient and doubts must be resolved favor of the reason- ableness of Jackman, the classification." State v. 60 Wis. 700, 705-06, 2d N.W.2d 480 I examine sec. 939.645, Stats., under a rational basis present test. The case does not on impinge right fundamental or create a classification based on suspect criterion. 939.645, Stats.,

Section is violated when the vic- protected tim's status is a substantial factor purposeful defendant's choice of a victim for certain crimes. When such intentional selection on account of proved, penalties status is in addition to the underlying crime perceive are assessed. I this legislation to be a legislative judgment that crimes involving intentional selection of a victim because of the victim's status cause greater harm to victims and to public the than do crimes in which this, status is not a factor. Because of legislature has punish chosen to these intentional selec- tion crimes more severely than conviction of the under- lying crime require. would otherwise

Regulation of harmful legitimate conduct is a exer- cise power. of a state's The function of legislature drafting always criminal laws is to make reasoned deci- sions concerning the particular social harm of conduct. replete criminal laws are with legislative similar judgments involving penalties. example, enhanced For Stats., 939.63, sec. penalty increases the for a crime if person uses, possesses, or threatens danger- to use a ous weapon. Similarly, if person'commits a a crime while identity concealed, his or her is penalty for the underlying crime be increased under sec. 939.641. also, (increased See sec. 939.62 penalty for habitual criminality); (increased sec. 939.621 penalty for certain offenses); (increased domestic abuse sec. 939.64

205 bullet-proof gar- wearing committing felony while a for (sexual ment); contact or sexual intercourse sec. 948.02 age years person of 13 not attained the with a who has felony, guilty B contact inter- while sexual of Class person age of 16 has attained course with a who felony); (kidnapping, B 940.31 a Class is a felony C sec. Class felony Class A statute is enhanced to a under the it with the intent "to cause another when is committed property the release of to transfer victim"). order obtain ample legislature's support evidence There of a victim from conclusion that intentional selection greater protected its as causes a harm to victims class society do crimes where the victim's well as to than Many commentators dis- status not a factor. have by widespread psychological harms caused cussed the generally, appear See Del- to be bias related. crimes that gado, A Action that Wound: Tort Words Racial Epithets, Name-Calling, Insults, Harv. C.R.-C.L. (1982); Response Matsuda, L. Speech: Racist Rev. 133 Public Considering Story, L. the Victim's Mich. (1989);Developments in Law Ori- Rev. 2320 Sexual Law, L. Rev. entation and the 102 Harvard posit These theorists that bias related crimes beyond injury damage far sim- cause created appear does bias ilar criminal conduct which to be tendency perpetuate prejudice related because of their to generally, people. Gellman, and victimize classes of See supra appear Crimes to be based on inten- at 340. that tional of the victim's status create fear selection because only among color, race, not share the victim's those who society religión, they general. etc; also but threaten Reports perhaps selection, if even of intentional by bigotry, appearance bigotry motivated create the misunderstanding, fear, and hatred. These crimes breed misconceptions, isolation between different classes people. legislature attempted Wisconsin has crimes, hinder by regulating speech, these thought, motivation, even but enhancing rather criminal crime, motivated, penalty any however where the perpetrator purposefully selects a victim because of a protected I status. conclude that the legislature's action eminently was principles reasonable and does not violate equal protection. posits

Mitchell equal protection an additional chal- 939.645, lenge to sec. Mitchell argues Stats. because applies sec. only 939.645 in the crimes listed Criminal Code, 939-948, chs. and not other found crimes statutes, equal protection. Wisconsin it violates Mitchell contends that this differentiation creates a classification equal based on suspect protec- criterion which violates (1) tion for three reasons: the statute discriminates against they poor and uneducated because are most 939-948, frequently accused of the crimes listed chs. and in exempt contrast "white collar" criminals from are the penalty they enhancement because commit (2) chapters; crimes found outside these treating crimes proscribed under chs. differently 939-948 from other crimes is unreasonable because some crimes found outside chs. 939-948 are serious those more than found (3) 939-948; in chs. it unreasonable to exclude certain crimes, trade, illegal as hunting such restraints of viola- tions, violations, fraud, vehicle drugs motor consumer narcotics, etc., found outside chs. 939-948 from the provision. arguments enhancement Mitchell's are merit. without 939.645, Stats., particular singles

Section out no treatment, group suspect for different and thus no classi- out, points simply there fication is involved. As the State collar/poor is no found in people" "white distinction sec. his support offered no evidence to Mitchell has 939.645. usually groups or minorities theory poor that are under chs. Fur- committing crimes 939-948. accused of Criminal thermore, crimes Code listed several traditionally as "white collar" are viewed involve what secrets); See, 943.70, (theft sec. of trade e.g., sec. crimes. crimes); sec. (computer (forgery); sec. 943.70 943.38 Likewise, office). crimes (misconduct public 946.12 as crimes traditionally viewed "white collar" that are See, e.g., ch. 161 which are outside chs. 939-948. found dichotomy which Mitchell drug covers offenses. argument his does not exist and seeks to establish without merit. argument is also without merit.

Mitchell's second proper the classification is not Mitchell contends that 939-948, Stats., crimes found outside chs. because some in the Code. Even are more serious than crimes Criminal if, chs. suggests, Mitchell some crimes outside as harms, equal protection does pose 939-948 more serious hierarchically to order "evils legislatures require legislate against according magnitude to their Holland, U.S. F.2d greater the lesser." v. 810 before denied, (D.C. 1987), U.S. Cir. cert 1057 Lastly, to exclude Mitchell claims it irrational Mitch- certain crimes from the enhancer statute. points hunting ell such as violations and motor crimes crimes argues vehicle violations and these as against specially just committed selected victims However, those covered the enhancer. as State notes, also although this assertion is meritless because singled when victims are out for harm undeniable crimes, required legislature code is not non-criminal v. legislate against all harms. See McDonald Board of Election, 802, U.S. equal 394 809 Therefore no protection violation exists.

The State offers further explanations why two for legislature 939.645, Stats., chose sec. apply only in grouped First, crimes the criminal code chs. 939-948. likely crimes which are most to involve bias related victim selection are listed the Criminal Code. For homicide, example, battery, and criminal damage to property Second, are listed in the Criminal Code. limiting application penalty of the enhancer to the Code, Criminal the legislature quickly was able to iden- tify certainty with of offenses which majority are most appropriate penalty for The limiting enhancement. application "avoided the cumbersome task of examining multitude crimes found outside the criminal code possible unanticipated for and undesired results." I find explanations practical these and light rational purpose sec. behind 939.645 preventing deterring bias related crime.

> conclusion, In disagrees majority's no one with the "punishment thought, statement that of one's however repugnant thought, major is unconstitutional." The ity point entirely. misses the Of course the Constitution protects thoughts, it bigoted hateful but does not person protection lend its to the who harbors such See, e.g., then acts Roberts v. them. thoughts and on Jaycees, United ("acts States 609, 628 (1984) U.S. 468 publicly invidious discrimination distribution . . . goods, available like or other services violence [and] types potentially expressive produce that activities special impact, harms distinct from their communicative Hishon ... are to no protection"); entitled constitutional 209 (" (1984) King '[ijnvidious Spalding, 69, v. & U.S. . . . . . has never been accorded affirma- . discrimination protections.'... no There is constitu- tive constitutional example, right, in the to discriminate selection tional may private join school or a labor of who attend (1976) McCrary, union."); Runyon v. 427 U.S. (" places discrimination', no on 'the constitution value '[ijnvidious private ... and discrimination while protected by as . . the First Amendment characterized . constitutional ... it has never been accorded affirmative "). protections' majority's it the conclusion it is Is permissible bigoted to act on beliefs?

I conclude that enhancer statute is vague I nor further neither overbroad. conclude that the principles equal protection. violate statute does not Accordingly, I dissent.

Case Details

Case Name: State v. Mitchell

Court Name: Wisconsin Supreme Court

Date Published: Jun 23, 1992

Citation: 485 N.W.2d 807

Docket Number: 90-2474-CR

Court Abbreviation: Wis.