On June 11, 1993, the United State Supreme Court upheld

Wisconsin\'s penalty enhancement law, which imposes harsher sentences
on criminals who "intentionally select the person against whom the
crime...is committed..because of the race, religion, color,
disability, sexual orientation, national origin or ancestry of that
person." Chief Justice Rehnquist delivered the opinion of the
unanimous Court. This paper argues against the decision, and will
attempt to prove the unconstitutionality of such penalty enhancement

On the evening of October 7, 1989, Mitchell and a group of
young black men attacked and severely beat a lone white boy. The
group had just finished watching the film "Mississippi Burning", in
which a young black boy was, while praying, beaten by a white man.

After the film, the group moved outside and Mitchell asked if they
felt "hyped up to move on some white people". When the white boy
approached Mitchell said, "You all want to fuck somebody up? There
goes a white boy, Go get him." The boy was left unconscious, and
remained in a coma for four days. Mitchell was convicted of aggravated
battery, which carries a two year maximum sentence. The Wisconsin
jury, however, found that because Mitchell selected his victim based
on race, the penalty enhancement law allowed Mitchell to be sentenced
to up to seven years. The jury sentenced Mitchell to four years, twice
the maximum for the crime he committed without the penalty enhancement

The U.S. Supreme Courtıs ruling was faulty, and defied a
number of precedents. The Wisconsin law is unconstitutional, and is
essentially unenforceable. This paper primarily focuses on the
constitutional arguments against Chief Justice Rehnquistıs decision
and the statute itself, but will also consider the practical
implications of the Wisconsin law, as well as a similar law passed
under the new federal crime bill (Cacas, 32). The Wisconsin law and
the new federal law are based on a model created by the Anti-

Defemation League in response to a rising tide of hate-related violent
crimes (Cacas, 33). Figures released by the Federal Bureau of

Investigation show that 7,684 hate crimes motivated by race, religion,
ethnicity, and sexual orientation were reported in 1993, up from 6,623
the previous year. Of those crimes in 1993, 62 percent were racially
motivated (Cacas, 32). Certainly, this is a problem the nation must
address. Unfortunately, the Supreme Court of the United States and
both the Wisconsin and federal governments have chosen to address this
problem in a way that is grossly unconstitutional.

"Congress shall make no law respecting an establishment of
religion, or prohibiting the free exercise therof; or abridging the
freedom of speech, or of the press; or the right of the people to
peaceably assemble, and to petition the government for a redress
of grievances."

The most obvious arguments against the Mitchell decision are
those dealing with the First Amendment. In fact, the Wisconsin

Supreme Court ruled that the state statute was unconstitutional in
their decision, which the U.S. Supreme Court overruled. The Wisconsim

Supreme Court argued that the Wisconsin penalty enhancement statute,

"violates the First Amendment directly by punishing what the
legislature has deemed offensive thought." The Wisconsin Court also
rejected the state\'s argument "that the statute punishes only the
conduct of intentional selection of a victim". The Court\'s contention
was that "the statute punishes the because of aspect of the
defendantıs selection, the reason the defendant selected the victim,
the motive behind the selection."

The law is in fact a direct violation of the First Amendment,
according to the Wisconsin Supreme Court, which said "the

Wisconsin legislature cannot criminalize bigoted thought with which it

"If there is a bedrock principal underlying the First

Amendment, it is that the government may not prohibit the expression
of an idea simply because society finds the idea itself offensive or
disagreeable". The Supreme Court was heard to utter such noble phrases
as recently as 1989, in Texas v. Johnson. Unfortunately these
idealistic principles seem to have been abandoned during Wisconsin v.


Clearly, Mitchell\'s act of assaulting another human is a
punishable crime, and no one could logiacally argue that the First

Amendment protects this clearly criminal action. However, the stateıs
power to punish the action does not remove the constitutional barrier
to punishing the criminalıs thoughts (Cacas, 337). The First Amendment
has generally been interpreted to protect the thoughts, as well as the
speech, of an individual (Cacas, 338). According to the Courtıs
majority opinion in Wooley v. Maynard, a 1977 case, "At the heart of
the First Amendment is the notion that an individual should be free to
believe as he will, and that in a free society oneıs beliefs should be
shaped by his mind and his conscience rather than coerced by the

Another componet of Mitchell\'s First