508 U.S. 476 (1993), argued 21 Apr. 1993, decided 11 June 1993 by vote of 9 to 0; Rehnquist for the Court.
Wisconsin was one of several states to pass so-called hate crime statutes, measures designed to inflict greater punishment on persons who committed crimes motivated by racial or other bias. The Wisconsin legislature had authorized stiffer sentences for crimes already on the books if the defendant had intentionally selected the person or property based on race, religion, color, disability, sexual orientation, national origin, or ancestry. Such measures came under increasing scrutiny in the early 1990s as defendants claimed that, among other things, these laws violated their freedom of expressive conduct under the First Amendment. For example, in R.A.V. v. City of St. Paul (1992) the justices held that government could not selectively silence speech on the basis of its content even if that expression was based on racial, religious, or gender bigotry. The justices in Mitchell, however, took a decidedly different tack.
The case involved Todd Mitchell, a black teenager from Kenosha, Wisconsin. He was convicted of leading an assault in October 1989 on a white teenager with the words, “There goes a white boy; go get him.” The incident, which left the victim in a coma for four days, flowed directly from a scene in the movie Mississippi Burning, in which similar treatment was accorded a black teenager. Mitchell was convicted and sentenced to a four-year term, twice the length ordinarily imposed, because the victim had been selected based on his race. Mitchell appealed the sentence and the Wisconsin Supreme Court overturned the law on the grounds that it had the effect of punishing thought.
In a rare show of unanimity meant to underscore the strength of their purpose, the justices acted without either dissent or concurrence in reversing the Wisconsin Supreme Court. Chief Justice William H. Rehnquist held that the abstract thoughts of a defendant could not be taken into account in sentencing, but that once belief had turned into action it could be punished. “A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment,” the chief justice wrote (p. 484). A judge was entirely justified, moreover, in taking into account a defendant's motive in committing an offense, a long-established practice in criminal sentencing.
Kermit L. Hall