Wisconsin v. Mitchell 508 U.S. 476 (1993)

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WISCONSIN v. MITCHELL 508 U.S. 476 (1993)

On October 7, 1989, in Kenosha, Wisconsin, Todd Mitchell, a nineteen-year-old black man, directed and encouraged a number of young black men and boys to attack a fourteen-year-old white boy, Gregory Riddick. Mitchell selected Riddick solely on the basis of his race. Mitchell was convicted of aggravated battery for his role in the severe beating—a crime that carries a maximum sentence of two years under Wisconsin law. His crime also implicated the Wisconsin hate crime statute that provides for the enhanced penalty of bias motivated crimes. Under this statute, the potential penalty for an aggravated battery is increased by five years if the perpetrator of the assault selected his victim on the basis of a set of enumerated group characteristics, including race, ethnicity, and religion.

Mitchell challenged his conviction under the hate crime statute, claiming that the enhancement of his prison term was a violation of his right to freedom of speech under the first amendment. The Wisconsin Supreme Court reversed the conviction in an opinion announced the day after r. a. v. v. city of st. paul (1992) was decided by the U.S. Supreme Court, and adopted much the same approach as did Justice antonin scalia for the majority of the Court in R. A. V. The Wisconsin court held that the penalty enhancement law "punishes the defendant's biased … thought and thus encroaches upon First Amendment rights."

The U.S. Supreme Court reversed the Wisconsin court and upheld Mitchell's sentence, including the enhanced portion. In defending its bias crime statute from constitutional attack, Wisconsin emphasized the precise form and content of that statute, particularly stressing that the statute punished discriminatory selection of a victim. Wisconsin contended that R. A. V. had been concerned with the regulation of expression while the Wisconsin bias crime statute proscribed not expression but conduct—the intentional discriminatory selection of a victim.

The U.S. Supreme Court largely based its decision on this speech-conduct distinction. Indeed, this was precisely the basis of the Court's distinction between the St. Paul ordinance that was struck down in R. A. V. and the Wisconsin statute. Writing for a unanimous Court, Chief Justice william h. rehnquist wrote that "whereas the ordinance struck down in R. A. V. was explicitly directed at expression (i.e., 'speech' or 'messages' …), the statute in this case is aimed at conduct unprotected by the First Amendment."

Although the speech-conduct distinction has been criticized by scholars as deeply flawed, since Mitchell, states have defended the constitutionality of their bias crime laws by arguing that their statutes do not interfere with the expression of prejudicial ideas but are addressed solely to the implementation of those views in conduct.

Frederick M. Lawrence


Jacobs, James B. and Potter, Kimberly 1998 Hate Crimes: Criminal Law and Identity Politics. New York: Oxford University Press.

Lawrence, Frederick M. 1999 Punishing Hate: Bias Crimes Under American Law. Cambridge, Mass.: Harvard University Press.

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Wisconsin v. Mitchell 508 U.S. 476 (1993)

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