NCJ Number
150000
Journal
Journal of Criminal Law and Criminology Volume: 84 Issue: 4 Dated: (Winter-Spring 1994) Pages: 703-742
Date Published
1994
Length
40 pages
Annotation
This article critiques the U.S. Supreme Court's ruling in Wisconsin v. Mitchell (1993), which held that the First Amendment does not prohibit a State from enhancing the penalty for a crime if the offender selected the victim because of the victim's race, color, religion, disability, sexual orientation, national origin, or ancestry.
Abstract
The author begins by reviewing the responses of various State legislatures to the incidence of "hate crime." He then examines three lines of cases relevant to deciding the constitutionality of penalty-enhancement statutes for hate crime. His argument posits that the U.S. Supreme Court answered a crucial threshold question incorrectly and therefore ignored relevant precedent in reaching its decision. Specifically, the author questions the Court's threshold conclusion that Wisconsin's penalty-enhancement statute merely regulates nonexpressive conduct by arguing that the statute impermissibly regulates speech, or, in the alternative, that the statute impermissibly regulates expressive conduct. The author concludes that the Court erred in ignoring these two arguments against sentence enhancement by focusing instead on cases addressing the admissibility of a defendant's words and expressive conduct during standard sentencing procedures. 292 notes