Hentoff, Nat

Strossen, Nadine

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Hate Crimes - Should They Carry Enhanced Penalties  At Issue

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digitalcommons.nyls.eduFaculty Scholarship Articles & Chapters1993Hate Crimes - Should They Carry EnhancedPenalties At IssueNadine StrossenNew York Law SchoolNat HentoffFollow this and additional works at: http://digitalcommons.nyls.edu/fac_articles_chaptersThis Article is brought to you for free and open access by the Faculty Scholarship at DigitalCommons@NYLS. It has been accepted for inclusion inArticles & Chapters by an authorized administrator of DigitalCommons@NYLS.Recommended Citation79 A.B.A. J. 44 (1993)Hate CrimesShould they carry enhanced penalties?By their own admission, those two staunchdefenders of the First Amendment-NadineStrossen, president of the American Civil LibertiesUnion, and Village Voice columnist Nat Hentoff-rarely disagree on the need for free speech.Except, perhaps, in the case of Wisconsin v.Mitchell, now pending before the U.S. SupremeCourt. Mitchell asks whether enhanced penaltiesfor hate crimes are constitutional.The ACLU contends that they are, becausethe gravamen of Mitchell's crime was action ratherthan speech. Mitchell said, 'There's goes a whiteboy. Let's get him," before he and somecompanions attacked a 14-year-old boy.Nat Hentoff sees it differently. He believesthat the age, race, ethnicity, gender or sexualpreference of a victim ought not make a differencein how criminals are punished.Yes: Discriminatory CrimesBY NADINE STROSSENTh further our constitutional val-ues of equality, the government mayimpose harsher punishments uponcrimes whose victims are selected onthe basis of racial and other invidi-ous discrimination.Opponents of laws authorizingsuch enhanced penalties have mis-leadingly claimed that they create"hate-speech crimes," and thereforeviolate the First Amendment. Butthese laws target acts that are moreaccurately described as "discrimina-tory crimes," and thus may be pun-ished consistent with the First Amend-ment, so long as the laws are nar-rowly drawn and carefully applied.If Wisconsin's discriminatorycrime statute-which is currentlybefore the Supreme Court in theMitchell case-punished discrimina-tory ideas or expressions, the Ameri-can Civil Liberties Union would op-pose that statute. The ACLU hasconsistently opposed all laws thatpunish "hate speech" and success-fully challenged the University ofWisconsin's hate-speech code on FirstAmendment grounds. However, Wis-consin did not punish Todd Mitchellfor his discriminatory beliefs but foracting on those beliefs by participat-ing in a vicious, near-fatal racistattack on a 14-year-old boy.This fundamental distinction be-tween protected thought and punish-able conduct is central to both freespeech jurisprudence and anti-dis-crimination laws. For example, land-lords may believe in racial segrega-tion, but they may not act on thisbelief by refusing to rent to prospec-tive tenants of a certain race.Anti-discrimination laws longhave prohibited discriminatory actsthat would not otherwise be illegal-for example, refusing to hire someone-because of society's consensus thatsuch discriminatory acts cause spe-cial harms, not only to the immediatevictim but also to the racial or othersocietal group to which the victimbelongs, and to our heterogeneoussociety more generally. Why, then,shouldn't the law treat discrimina-tory criminal acts more severely thanother criminal acts?Promoting Equality ValuesUnlike those who urge that alldiscriminatory crime laws are un-constitutional, the ACLU's positionis that, if narrowly drafted and care-fully enforced, such laws can avoidFirst Amendment pitfalls while pro-moting constitutionally protectedequality values. Thus, the ACLUmaintains that a defendant's wordsare only relevant if the governmentcarries the heavy burden of provingbeyond a reasonable doubt that theyare directly related to the underlyingcrime and probative of his discrimi-natory intent.Without this tight nexus, thedefendant's thoughts, associations andexpressions remain constitutionallyprotected and inadmissible. Accord-ingly, the ACLU has opposed certaindiscriminatory crime laws in somecontexts. It has opposed Florida'slaw providing for an enhanced pen-alty if the crime "evidences preju-dice," because this law on its facepunishes defendant's abstractthought without demanding a clear,specific connection between the prej-udiced thought and a particular crime.In the Mitchell case, there was asufficiently direct nexus between Mitch-ell's racially inciting statements andthe brutal attacks they provoked totreat the statements as probative ofhis discriminatory intent. Address-ing a group of other black men,Mitchell said, "Do you all feel hypedup to move on some white people?"When the victim approached a shorttime later, Mitchell said to the group,"You all want to f--- somebody up?There goes a white boy; go get him."He then indicated that the groupshould surround the victim. Immedi-ately thereafter, group members rantoward the boy, surrounded him, andrepeatedly kicked and punched himinto unconsciousness.Expression may constitute cir-cumstantial evidence of discrimina-tory intent under discriminatory crimelaws, as it does under other anti-discrimination laws. But the FirstAmendment does not bar the use ofwords to prove criminal intent orother elements of a crime. An ac-cused kidnapper cannot raise a FirstAmendment objection to the intro-duction of a ransom note into evi-dence. Nor can a defendant who hasmade repeated, harassing telephonecalls claim immunity from prosecu-tion because his instruments of har-assment were words.The First Amendment protectsthe right to be a racist, to join racistorganizations, to express racist be-liefs-but not the right to engage inracist attacks This critical distinc-tion may be difficult to draw inparticular situations. But to pretendit doesn't exist disserves constitu-tional values of both free speech andequality. N44 ABA JOURNAL / MAY 1993No: Equality Among VictimsBY NAT HENTOFFTodd Mitchell, a black convictedof aggravated battery in Wisconsin,was sentenced to two years in prison.But because the victim was white,Mitchell, under the state's "hatecrimes" law, received an additionalsentence of two years. (He could havebeen put away for three more yearsfor having said, "There goes a whiteboy; go get him.")"Does this make sense?" asks aneditorial in the Washington Post."Wouldn't it have been just asoutrageous if the assailants hadbeaten a black boy? Why should onevictim be more precious than theother in the eyes of the law?"Yet, as State of Wisconsin v.Todd Mitchell neared April oral argu-ments in the Supreme Court, theAmerican Civil Liberties Union wassupporting the state of Wisconsin.Whatever happened to its support ofequal protection under the law?Those also insisting on the con-stitutionality of extra punishmentfor speech-related crimes claim thatthereby a message will be sent toblacks, women, gays, lesbians, etc.,that bias crimes must be punishedmore harshly because, as WisconsinAttorney General James Boyle says,they are "much more harmful to thecommunity."But what message is sent to allthe others in the community who areattacked for no reason other than thecriminal's lust for money?Are the injuries they suffer-however painful physically and psy-chologically-of less importance tothe community under equal protec-tion of the law?Then there is the actual word-ing of Wisconsin's enhanced-penaltystatute. Due for extra prison time iswhoever "intentionally" selects thevictim "because of the race, religion,color, disability, sexual orientation,national origin or ancestry of thatperson.".What about age? (We are in themiddle of a cost-benefit generationalwar.) What about political orienta-tion? In short, what about R.A.V.City of St. Paul and the selection ofonly certain groups to trigger theextra years behind bars because ofwhat they said while committing thecrime?And what about "intentionally?"Is all black-on-white crime or male-on-female crime due to bias?Bringing in the Thought PoliceAnd in countering the defenseagainst such charges, what is toprevent the prosecutor from findingout what books and magazines thedefendant reads, what sort of lan-guage he uses at the local bar, andwhat his co-workers say about whatthey know of his prejudices.Those, like the ACLU, who areurging the Supreme Court to add tosentences because of bias are tellingit to be sure to foreclose such abusiveprivacy-bending investigations.The Supreme Court, however, isunder no obligation to take theirprayers seriously. And if this statuteis-as the ACLU admits in its ami-cus brief-"easily susceptible to pros-ecutorial abuse," why is a civil liber-ties organization asserting itsconstitutionality? Because the ACLUdoes not want to appear soft onracism, sexism, etc.ILLUSTRATION BY TIM TEEBKENIn many of the briefs trying tojustify the legitimacy of creating thisthought crime, the argument is madethat unless the Supreme Court over-rules Wisconsin's Supreme Court inthis case, state and federal anti-discrimination laws will be at peril.Yet, as the Supreme Court ofOhio, striking down a similar stat-ute, noted in State v. Wynant: "Lawsagainst discrimination in employ-ment, housing and education do pro-hibit acts committed with a discrimi-natory motive," but "it is the act ofdiscrimination that is targeted, notthe motive."In disparate impact cases, more-over, no discriminatory motive isnecessary. And under a disparatetreatment analysis, "proof of discrim-inatory motive can be inferred fromdifferences in treatment. ... Bigotedmotive by itself is not punished, nordoes proof of motive enhance thepenalty when a discriminatory act isbeing punished."In this case before the SupremeCourt, the act is being justly pun-ished, but the speech purportedlyaccompanying the act is also beingpunished. At least three state affili-ates of the ACLU-Ohio, Florida andVermont-have refused to join thenational ACLU's attack on the FirstAmendment. They agree with whatACLU president Nadine Strossensaid in April 1992 in a St. Paulsymposium on hate speech and R.A.V:"Overly broad hate-speech lawgives the government a very power-ful tool that can be-and historically,consistently has been-used againstthe very minority groups that it isintended to protect." But that waslast year. UABA JOURNAL / MAY 1993 45

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