Wisconsin v. Mitchell marked the first time that the Supreme Court upheld a bias crime statute. The defendant, Todd Mitchell, was a nineteen-year-old black man who directed and encouraged a number of young black men and boys to attack a fourteenyear- 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 carried a maximum sentence of two years under Wisconsin law. His crime also implicated the Wisconsin hate crime statute, which provided for the enhanced penalty of biasmotivated crimes. Under this statute, the potential penalty for an aggravated battery was increased by five years if the perpetrator of the assault selected his victim on the basis of the victim’s race.
Mitchell challenged his conviction under the bias crime statute, claiming that the enhancement of his prison term was a violation of his right to freedom of expression 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 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 upheld Mitchell’s sentence, including the enhanced portion. In defending its bias crime statute from constitutional attack, Wisconsin seized upon the precise form and content of that statute and the fact that the statute punishes discriminatory selection of a victim. This provided a key element in Wisconsin’s argument that its statute withstood the holding in R.A.V. Wisconsin contended that R.A.V. was concerned with the regulation of expression. The Wisconsin bias crime statute proscribed not expression but conduct—the conduct of intentional discriminatory selection of a victim.
The Supreme Court in Wisconsin v. Mitchell largely based its decision on a speech–conduct distinction. Writing for a unanimous Court, Chief Justice 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 scholars have criticized the speech– conduct distinction as deeply flawed, the distinction did form the basis of the Court’s decision in Mitchell to uphold the Wisconsin bias crime law. Following Mitchell, states have defended the constitutionality of bias crime laws by arguing that their statutes do not interfere with the expression of prejudicial ideas, and are addressed solely to the implementation of those views in conduct. States have asserted their ability to differentiate speech from conduct, and to protect the former while punishing the latter.
FREDERICK M. LAWRENCE
Cases and Statutes Cited