Wisconsin v. Mitchell Brief Amicus Curiae in Support of Petitioner

    No. 92-515

In  The

Supreme Court of tj)e MmtEtr States:
October Term , 1992

State of W isconsin,

v.
Todd Mitchell ,

Petitioner,

Respondent.

On Writ of Certiorari to the 
Supreme Court of Wisconsin

BRIEF AMICUS CURIAE IN  SUPPORT OF PETITIONER  
OF THE CROWN HEIGHTS COALITION, THE NAACP 
LEGAL DEFENSE AND EDUCATIONAL FUND, INC., 

AND THE AM ERICAN JEW ISH COMMITTEE

Elaine R. Jones 
E ric Schnapper 

NAACP Legal Defense & 
Educational Fund, Inc. 

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

Samuel Rabinove 
Richard T. Foltin 
Kenneth S. Stern 

The American Jewish 
Committee 

165 East 56 Street 
New York, New York 10002 
(212) 751-4000

Counsel for Amici

PRESS OP BYRON S. ADAMS, WASHINGTON, D.C. (202) 347-8203



TABLE OF CONTENTS

TABLE OF CONTENTS ................................................... i

TABLE OF AUTHORITIES..................................... .. . ii

INTEREST OF AMICI ................................................. 2

SUMMARY OF ARGUM ENT......... ...................... . . 4

ARGUMENT....................................     6

I. SECTION 939.645 DOES NOT VIOLATE
THE FIRST AMENDMENT........................ 8

II. THE DECISION OF THE COURT BELOW 
IS INCONSISTENT WITH THE 
DECISIONS OF THIS COURT 
AND WITH BASIC PRINCIPLES OF
CRIMINAL LAW  ........................... 21

III. SECTION 939.645 SERVES IMPORTANT
STATE INTERESTS................................ .39

IV. ESTABLISHED CONSTITUTIONAL
SAFEGUARDS SHOULD ASSURE THAT 
THE APPLICATION OF 
SECTION 939.645 IS CONSISTENT 
WITH THE FIRST AND FOURTEENTH
AMENDMENTS......................................... 48

CONCLUSION .............................................................. 57

l



TABLE OF AUTHORITIES

CASES

Barclay v. Florida,
463 U.S. 939 (1983) . . . . . . . . . . . .  5, 20, 52, 55

Blystone v. Pennsylvania,
494 U.S. 299 (1990) ........................... ..........  31, 49

Board of Directors v. Rotary Int’l,
481 U.S. 537 (1987) ...................... .. 12

Bob Jones University v. United States,
461 U.S. 574 (1983) .................... .. 5, 13

Brandenburg v. Ohio,
395 U.S. 444 (1969) .................... ...................  12

Bray v. Alexandria Women’s Health Clinic,
61 U.S.L.W. 4080 (1993) ......... ..........................  9

Brown v. Board of Education,
347 U.S. 483 (1954) .......................’................... 40

Ex Parte Commonwealth of Virginia,
100 U.S. 339 (1880) . ........................................  7

Dawson v. Delaware,
117 L. Ed. 2d 309 (1992) . . . . . . . . .  6, 19, 20, 48

Eddings v. Oklahoma,
455 U.S. 104 (1982) . .............. 32

Estelle v. McGuire,
116 L. Ed. 2d 385 (1991) 49



Evans v. United States,
119 L. Ed. 2d 57 (1992) .................................. 49

Illinois v. Perkins,
110 L. Ed. 2d 243 (1990).................................. 49

Lambert v. California,
355 U.S. 225 (1957) ...................... 23

Lewis v. Jeffers,
111 L. Ed. 2d 606 (1990)......... ...................  31,49

Lockett v. Ohio,
438 U.S. 586 (1978) ............................... .. 32

McCleskey v. Kemp,
481 U.S. 279 (1987) ....................................  37, 54

Meritor Savings Bank v. Vinson,
477 U.S. 57 (1986)............................................  17

NAACP v. Claiborne Hardware Co.,
458 U.S. 886 (1982) ................ 5, 6, 11, 35, 50, 52

New York Times v. Sullivan,
376 U.S. 254 (1964) ........................................  35

Norwood v. Harrison,
413 U.S. 455 (1973) ........................................  13

Payne v. Tennessee,
115 L. Ed. 2d 720 (1991)............. ............... 32, 53

People v. Beebe,
67 Or. App. 738, 680 P.2d 11 (1981) .............  46

in



People v. Grape,
532 N.Y.S.2d 815, 141 Misc. 2d 
6 (N.Y. Crim. Ct. 1988) ......................... .. . 14, 40

R.A.V. v. St. Paul,
120 L. Ed. 2d 305 (1992) . . . .  4, 13, 14, 15, 17, 39

Renton v. Playtime Theaters, Inc.,
475 U.S. 41 (1988)............................. .. 36

Roberts v. United States Jaycees,
468 U.S. 609 (1984) .............. .................. .. . 12, 39

Robinson v. California,
370 U.S. 660 (1962) . . . . . . . . . . . . . . ----- - 23

Runyon v. McCrary,
427 U.S. 160 (1976) .................. .. 13

Sawyer v. Smith,
111 L. Ed. 2d 193 (1990) . ................................ 49

Screws v. United States,
325 U.S. 91 (1945)..................................... .. 23, 24

Stanford v. Kentucky,
492 U.S. 361 (1989) .................................... 49

State v. Madsen, 609 P,2d 1046 (Ariz. 1980),
cert, denied, 449 U.S. 873 (1980)......................  31

Stringer v. Black,
117 L. Ed. 2d 367 (1992) . ................................ 30

Texas v. Johnson,
491 U.S. 397 (1989) ...................... ...................  11

IV



Thompson v. Oklahoma, 487 U.S. 815 (1988) . . . . . .  49

United States v. Eichman,
496 U.S. 310 (1990) .................................. ........... 11

United States v. Gilbert,
813 F.2d 1523 (9th Cir. 1987) ............................... 25

United States v. Lee,
935 F.2d 952 (8th Cir. 1991) .......................... 25

United States v. Mills,
704 F.2d 1553 (11th Cir. 1983) ....................... .. . 53

United States v. Palmer,
Crim. No. 91-50063-03 (W .D.La).......................... 25

United States v. Price,
383 U.S. 787 (1966) ..............................................  25

Walker v. Birmingham,
388 U.S. 307 (1967) ..............................................  35

Washington v. Davis,
426 U.S. 229 (1976) .............................................. 37

Williams v. United States,
117 L. Ed. 2d 341 (1992).......................................  49

STATUTES

14 Stat. 27 (1866) ............................................................  7

16 Stat. 140 (1870) ............................................................  7

18 Stat. 336 (1875) .......................................................... 7

18 U.S.C.....................    7,25,26,27,54

42 U.S.C. §3631 .......................................................... 8,42

v



18 U.S.C. . . . ___  7,25,26,27,54

42 U.S.C §3631 ..........................................................  8,42

42 U.S.C. §1981 ........................................ . . . . . . . .  33

Wis. Stat. §939.23(3) . ................................................. . 29

Wis. Stat. §939.48 .......................... . . . . . . . . . . . . . . .  30

Wis. Stat. §939.49 .................. ................................ .. • • 30

Wis. Stat. §939.645 ........... .......................... . . . . . .  passim

Wis. Stat. §940.19 ............................. .. 28

Wis. Stat. §943.10 ............. ................. ........................ 30

M ISCELLA NEO US

Cong. Globe, 39th Cong., 1st sess. 2962 (1866) .........  18

FBI Law Enforcement Bulletin, (January 1991.) . . . .  40

"Fighting Words and Fighting Freestyle: The 
Constitutionality of Penalty Enhancement for Bias 
Crimes", 101 Col L.Rev. 178 (1992) ........... .................  31

K. Stem, Bigotry on Campus:
A  Planned Response (1990) .................... .. 44

Minnesota Board of Peace Officer Standards
and Training, Bias Motivated Crimes (1990) . . 43

National Institute Against Prejudice and Violence, 
Ethnoviolence on Campus:
The UMBC Study, (1987) ................ .. 44

vi



Note, 26 Marquette L.Rev. 92, (1942) ......................... 23

T. Wood, An Institute of the Laws of England, (1772) . 23

1 W. Hawkins, A  Treatise of the Pleas of the Crown,
(1716)................................................................. 23

W. LaFave and A. Scott, Jr., Criminal
Law (1972)................................. .. ................  23, 30

W. LaFave, Principles of Criminal Law (1978) . . . . . .  22

vn



No. 92-515

IN THE

SUPREME COURT OF THE UNITED STATES 

OCTOBER TERM, 1992

STATE OF WISCONSIN,

Petitioner.

v.

TODD MITCHELL,

Respondent

On Writ of Certiorari to the 
Supreme Court of Wisconsin

BRIEF AMICUS CURIAE 
IN SUPPORT OF PETITIONER 

OF THE CROWN HEIGHTS COALITION, 
THE NAACP LEGAL DEFENSE AND 

EDUCATIONAL FUND, INC., AND THE 
AMERICAN JEWISH COMMITTEE



2

IN TER EST O F AM ICI1

The Crown Heights Coalition was formed on August 

22, 1991, at the behest of Brooklyn Borough President 

Howard Golden, in response to a racial crisis in the Crown 

Heights neighborhood of Brooklyn, in which African- 

Americans, Caribbean-Americans, and Lubavitch Hasidic 

Jews live. This racial crisis was precipitated by the tragic 

automobile accident in which Gavin Cato, a seven year old 

black boy, was killed by a car driven by a Lubavitch, and the 

apparently retaliatory murder of Yankel Rosenbaum, a 

twenty-nine year old Lubavitch scholar, by a group of black 

youths. The Crown Heights Coalition includes thirty-six 

educational, religious, civic and elected leaders representing 

local Lubavitch Hasidim, Caribbean-Americans, and African- 

Americans. Dr. Edison O. Jackson, President of Medgar 

Evers College, and Rabbi Shea Hecht, Board Chairperson, 

National Committee for the Furtherance of Jewish

1 Copies of letters from the parties consenting to the filing of 
this brief have been filed with the Clerk.



3

Education, serve as Co-Chairpersons. The Coalition has 

identified and is endeavoring to alleviate the underlying 

causes of racial and ethnic tensions in Crown Heights, 

including a lack of cultural awareness and interaction, 

problems in police-community relations, inadequate youth 

services, and concerns that one group or another has 

received preferential treatment by city officials. The 

members of the Coalition share a conviction that a respect 

for and tolerance of racial, religious and cultural differences 

is essential to the well being of their community.

The NAACP Legal Defense and Educational Fund, 

Inc., is a non-profit corporation formed to assist African- 

Americans to secure their constitutional and civil rights by 

means of litigation. Since 1965 the Fund’s attorneys have 

represented plaintiffs seeking to enforce a wide variety of 

statutes which prohibit intentional discrimination on the 

basis of race. The constitutionality of these statutes has 

been called into question by the decision below. Individuals 

represented by the Fund’s attorneys have been the victims of



4

intentionally discriminatory conduct which violated criminal 

civil rights provisions similar to the statute declared 

unconstitutional by the Wisconsin Supreme Court.

The American Jewish Committee, a national 

organization with over thirty chapters, was founded in 1906 

for the purpose of protecting the civil and religious rights of 

Jews. It is AJC’s conviction that the security and the 

constitutional rights of Jewish Americans can best be 

protected by helping to preserve the security and 

constitutional rights of all Americans, irrespective of race, 

creed, or national origin. The constitutionality of criminal 

statutes such as the Wisconsin law at issue in this case is of 

particular concern to AJC because Jews and Jewish religious 

institutions have been and continue to be a particular target 

of bias motivated criminal activity.

SUMMARY OF ARGUMENT

Unlike the statute held unconstitutional in R.A. V  v. 

St. Paul, 120 L.Ed.2d 305 (1992), the statute at issue in this 

case is concerned with conduct, not expression. Section



5

939.645 authorizes an enhanced sentence where the victim 

of a crime was selected on the basis of race, etc., regardless 

of whether the perpetrator, by word or expressive conduct, 

conveyed any message to the victim or the public. This 

Court has long held that neither violence nor intentional 

discrimination are protected by the First Amendment. 

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); Bob 

Jones University v. United States, 461 U.S. 574 (1983). The 

imposition of an enhanced sentence for a racially motivated 

crime was expressly held permissible in Barclay v. Florida, 

463 U.S. 939 (1983).

If the First Amendment barred the imposition of 

additional criminal sanctions, or penalty enhancement, 

based on a defendant’s motive, numerous federal and state 

laws would have to be struck down as unconstitutional. Six 

federal criminal provisions apply to conduct undertaken with 

a racial motive. Eight federal laws impose criminal penalties 

for attacks on various federal officials "on account of' their 

performance of official duties. Wisconsin law imposes an



6

enhanced penalty for an assault on a juror "by reason of any 

verdict . . . assented to by the person." (Wisconsin Stat. 

940.20). These statutes are indistinguishable from the 

Wisconsin law held invalid by the court below.

Section 939.645 serves the state’s vital interest in 

deterring and punishing bias related crimes. Such crimes 

have a unique capacity to terrorize entire groups, to 

interfere with constitutionally protected activity, and to 

trigger retaliatory criminal acts.

The existing decisions of this Court provide suitable 

safeguards to assure that section 939.645 is not abused. 

NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982); 

Dawson v. Delaware, 117 L.Ed.2d 309 (1992).

ARGUMENT

Since the end of the Civil War, when the Constitution 

was amended to replace protection of chattel slavery with a 

guarantee of equal justice, the national government has 

utilized the force of the criminal law to prohibit, deter and 

punish various forms of invidious discrimination. The 1866



7

Civil Rights Act contained in section 2 a criminal provision 

forbidding certain types of unequal treatment "by reason or 

. . . color or race."2 The 1870 Civil Rights Act, adopted 

following the ratification of the Fifteenth Amendment, 

imposed criminal penalties on those who denied citizens an 

equal right to vote "without distinction of race, color, or 

previous condition of servitude."3 In 1875 Congress declared 

it a misdemeanor for any person responsible for the 

selection or summoning of jurors to discriminate "on account 

of race, color or previous condition of servitude."4 Today 

there are a total of six federal criminal provisions that 

prohibit conduct based on an invidiously discriminatory 

motive. Most of these, like the 1866 Civil Rights Act, apply 

to discrimination on the basis of race; other subsequently

2 14 Stat. 27 (1866). This provision is now codified in 18 U.S.C. 
§241.

3 16 Stat. 140 (1870). The analogous provisions are now codified 
in 18 U.S.C. §245.

4 18 Stat. 336 (1875). This Court sustained the prosecution of a 
state judge under this statute. Ex Parte Commonwealth of Virginia, 
100 U.S. 339 (1880).



8

enacted prohibitions also apply to discrimination on the 

basis of national origin, religion, and sex.5

Wisconsin, like several dozen other states, has 

adopted a criminal provision similar to these federal criminal 

civil rights provisions. The question presented by this case 

is whether the First Amendment prohibits the states and the 

federal government from enacting criminal prohibitions 

against invidious discrimination.

I. SECTION 939.645 DOES NOT VIOLATE THE
FIRST AMENDMENT.

Section 939.645 provides that the penalty for most6 

crimes may be increased if the prosecution proves beyond a 

reasonable doubt that the defendant selected the victim of 

the crime, or the property damaged or affected by the crime, 

"because of the race, religion, color, disability, sexual 

orientation, national origin or ancestry of that person or the

5 18 U.S.C. §§242, 243, 245, 246, 247; 42 U.S.C. §3631.

6 The enhanced penalty in section 939.645 applies to the crimes 
prohibited by chapters 939-948 of the Wisconsin Statutes. These 
chapters encompass most of the criminal provisions of the Wisconsin 
statutes.



9

owner or occupant of that property." What the actual 

sentence imposed will be remains a decision for the 

sentencing judge. In order to trigger application of section 

939.645, the prosecution must prove beyond a reasonable 

doubt two distinct elements: first, that the defendant made 

a deliberate choice of victim, rather than, for example, 

robbing whomever he chanced first to meet, and, second, 

that the choice was made on the basis of race or one of the 

other specified grounds.

On the face of the statute, however, it is irrelevant 

why the perpetrator may have utilized race, etc., to select his 

victim. The statute does not require proof that the 

defendant, harbored animosity toward a particular group,7 

and does not authorize an enhanced penalty merely because 

the defendant may believe that his own race, religion or 

ethnic group is superior. Section 939.645 would apply, for

7 Some penalty enhancement statutes do require proof of racial 
or other class animus. In our view such a requirement poses no 
constitutional problem. See Bray v. Alexandria Women’s Health Clinic, 
61 U.S.L.W. 4080 (1993).



10

example, if a black perpetrator selected a black victim in the 

belief that the police were less likely to investigate crimes 

against racial minorities. The law would be equally 

applicable to a defendant who, although personally 

indifferent to matters of theology, made a tactical decision 

to rob Quakers in the belief that they were less likely to 

offer forcible resistance. Of course in any particular case it 

may be that a defendant made a race-based choice of victim, 

not as a matter of tactics, but because of some belief 

regarding, for example, the moral worth of the targeted 

group. But the Wisconsin law does not require that the 

defendant adhere to any such view, and such views, if not 

the basis for the selection of the victim, would be legally 

irrelevant.

The First Amendment, of course, protects the rights 

of all persons, law abiding and criminal alike, to hold 

whatever beliefs they please regarding race, religion, 

ancestry, disability, and sexual orientation. But where an 

individual’s beliefs lead him or her to engage in otherwise



11

criminal activity, the First Amendment affords no protection 

for that conduct. In striking down the state flag desecration 

statute in Texas v. Johnson, 491 U.S. 397 (1989), this Court 

emphasized that

nothing in our opinion should be taken to 
suggest that one is free to steal a flag so long 
as one later uses it to communicate. We also 
emphasize that Johnson was prosecuted only 
for flag desecration-not for trespass, 
disorderly conduct, or arson.

491 U.S. at 412 n. 12. Justice Stevens correctly observed in

United States v. Eichman, 496 U.S. 310, 322 (1990) (dissenting

opinion), that "the communicative value of a well-placed

bomb in the Capitol does not entitle it to the protection of

the First Amendment . . ." The Court in NAACP v.

Claiborne Hardware Co., 458 U.S. 886 (1982), admonished:

The First Amendment does not protect 
violence. "Certainly violence has no sanctuary 
in the First Amendment, and the use of 
weapons, gunpowder, and gasoline may not 
constitutionally masquerade under the guise 
o f ’advocacy.’". . .  [Vjiolent conduct is beyond 
the pale of constitutional protection.

458 U.S. at 916, 933. Even speech can be criminalized where

it is an effective "incitement to imminent lawless action."



12

Brandenburg v. Ohio, 395 U.S. 444, 449 (1969). A fortiori

lawless action itself enjoys no constitutional protection

merely because it may have been prompted by such verbal

incitement. The First Amendment provides to every

individual the right to believe Proudhon’s quip that

"Property is theft", but accords to no one the right to steal.

Brandenburg applied the First Amendment to protect

the right of members of the Ku Klux Klan to both adhere to

and express deplorably racist and anti-Semitic beliefs. 395

U.S. at 446, 447, 446 n. 1. But this Court has repeatedly

rejected First Amendment challenges to the authority of the

government to forbid discriminatory conduct.

[Ajcts of invidious discrimination . . . cause 
unique evils that government has a 
compelling interest to prevent-wholly apart 
from the point of view such conduct may 
transmit. Accordingly, like violence or other 
types of potentially expressive activities that 
produce special harms distinct from their 
communicative impact, such practices are 
entitled to no constitutional protection.

Roberts v. United States Jaycees, 468 U.S. 609, 628 (1984); see 

Board of Directors v. Rotary Int’l, 481 U.S. 537 (1987).



13

[PJarents have a First Amendment right to 
send their children to educational institutions 
that promote the belief that racial segregation 
is desirable . . . .  [b]ut it does not follow that 
the practice of excluding racial minorities 
from such institutions is also protected by the 
same principle.

Runyon v. McCrary, 427 U.S. 160, 176 (1976); see Bob Jones 

University v. United States, 461 U.S. 574, 602-04 (1983); 

Norwood v. Harrison, 413 U.S. 455, 469-70 (1973) ("although 

the Constitution does not proscribe private bias, it places no 

value on discrimination. . . .").

The ordinance held unconstitutional in RA. V. v. St. 

Paul, 120 L. Ed. 2d 305 (1992), is clearly distinguishable from 

the statute in the instant case. The law in RA.V. was 

concerned with speech, not with action; it forbad the use of 

symbols, graffiti, or appellations (e.g. racial epithets) which 

would arouse "anger, alarm or resentment in others on the 

basis of race," etc. 120 L.Ed. 2d at 315. This Court held 

that even where speech as such was subject to government 

control because, e.g., it involved fighting words, libel or 

obscenity, those controls had to be content neutral; the St.



14

Paul ordinance, although directed at fighting words, was 

fatally defective because it specifically treated some fighting 

words differently than others. 120 L. Ed. 2d at 323-26.

The statute at issue in this case, on the other hand, 

is directed not at expression, whether through words or 

symbolic acts, but at conduct, regardless of whether that 

conduct has any expressive element8 and regardless of what 

any such expressive element may be. Thus, section 939.645 

is fully applicable if the victim at issue was chosen on the 

basis of race, etc., even though the perpetrator may never 

have intended to communicate any message to his victim or 

others. In the instant case there appears to have been no 

such intent or message; the victim in all likelihood assumed 

at the time of the crime that he was being assaulted for his 

shoes. Conversely, under the Wisconsin law even the most 

overtly racist message conveyed in connection with a crime 

would be irrelevant unless the victim was selected by means

8 "One could violate this statute while remaining entirely 
mute." People v. Grupe, 532 N.Y.S. 2d 815, 818, 141 Misc. 2d 6 (N.Y. 
Crim. Ct. 1988).



15

of one of the forbidden criterion. Thus if a perpetrator had 

killed a randomly selected victim, and then pinned to the 

body a diatribe vilifying some racial group, the Wisconsin 

statute would not apply.

RA, V. does not, as the court below evidently 

believed,9 impart some special constitutional protection to 

a defendant’s "racial or other discriminatory animus". On 

the contrary, RA. V  made clear that under other statutes a 

state could have penalized the very cross burning in that 

case. The Court observed that Minnesota had available to 

it for that purpose several laws which were neutral with 

regard to any message that R.A.V. may have intended to 

convey. 120 L. Ed. 2d at 328. The majority referred 

expressly to two Minnesota provisions which, like the statute 

in the instant case, provided for enhanced penalties where 

certain crimes were committed "because of the victim’s . . .

9 Pet. App. A16.



16

race, color, religion, sex, sexual orientation, disability . . . 

age, or national origin."10

The Court in R A .V  specifically held that the

enforcement of anti-discrimination laws would raise no

problems under the First Amendment, even where—as is not,

of course, the case here-the discrimination had been

effectuated by means of words rather that physical actions.

[SJince words can in some circumstances 
violate laws directed not against speech but 
against conduct (a law against treason, for 
example, is violated by telling the enemy the 
nation’s defense secrets), a particular content- 
based subcategory of a proscribable class of 
speech can be swept up incidentally within the 
reach of a statute directed at conduct rather 
than speech. . . . Thus, for example, sexually

10 120 L. Ed. 2d at 315 nn. 1 and 2. Minnesota Statutes § 
606.595(Supp. 1992), cited at p. 315 and footnote 1 as among the laws 
under which R.A.V. might have been punished, authorizes an 
enhanced sentence for intentional damage to property if the 
perpetrator caused the damage because of the race, etc., of the owner 
or another.

Footnote 2 notes that the petitioner in R A . V. had indeed been 
charged under, but "did not challenge", Minnesota Statute 
§609.2231(4). The cited subparagraph 4 is the portion of the 
Minnesota assault statute which authorizes an enhanced penalty for 
"[wjhoever assaults another because of the victim’s or another’s actual 
or perceived race, color, religion, sex, sexual orientation, disability . 
. . ,age, or national origin."



17

derogatory "fighting words", among other 
words, may produce a violation of Title VII’s 
general prohibition against sexual 
discrimination in employment practices. . . . .
29 CFR §1604.11 (1991).

120 L. Ed. 2d at 322. The Title VII regulation cited by the 

Court in RA. V. proscribes as sexual harassment verbal or 

physical acts which have "the purpose or effect of 

unreasonably interfering with an individual’s work 

performance or creating an intimidating, hostile, or offensive 

working environment." 29 C.F.R. §1604,ll(a) (1991). See 

Meritor Savings Bank v. Vinson, A ll U.S. 57, 63-67 (1986).

R A .V  also properly recognized that a statute which 

protected only "certain persons or groups" would ordinarily 

have difficulty meeting "the requirements of the Equal 

Protection Clause." 120 L. Ed. 2d at 323. One of the core 

requirements of the Equal Protection Clause is that all 

persons should enjoy to an equal degree the protection 

which the law provides against murder, assault, and other 

criminal acts. As one member of the Thirty-Ninth Congress 

explained, "All the people, or all the members of a state or



18

community, are equally entitled to protection."11 That 

concept of equal protection was of central importance to the 

framers of the Fourteenth Amendment, and explains-the use 

of the word "protection" in the phrase equal protection.12 

The Wisconsin statute at issue in this case, however, does 

not provide for an enhanced penalty if members of some 

favored race, religion or other group or class are the victims 

of crime.13 Individuals of every race, creed, national origin

11 Cong. Globe, 39th Cong., 1st sess. 2962 (1866). Senator Wilson 
admonished:

"[T]he poorest man, be he black or white, that treads 
the soil of this continent, is as much entitled to the 
protection of the law as the richest and proudest 
man in the land. . . . [T]he poor man, whose wife 
may be dressed in a cheap calico, is as much entitled 
to have her protected by equal law as is the rich 
man to have his jeweled bride protected by the laws 
of the land . . . .  [T]he poor man’s cabin, though it 
may be the cabin of a poor freedman in the depths 
of the Carolinas, is entitled to the protection of the 
same law that protects the palace of a Stewart or an
A stor____"

Id. at 343.

12 The original intent of the framers of the Fourteenth 
Amendment in this regard is set out in the Brief Amicus Curiae of 
the NAACP Legal Defense and Educational Fund, Inc., in No. 88- 
305, South Carolina v. Gathers.

13 In contrast, a state could provide special protection, including 
a provision for enhanced punishment, for individuals performing 
governmental or other important functions, or for individuals, such



19

and sexual orientation are protected to an equal degree by 

the law.

This Court’s decision in Dawson v, Delaware, 117 L. 

Ed. 2d 309 (1992), is fairly dispositive of the validity of the 

Wisconsin statute at issue in the instant case. The defendant 

in Dawson advanced essentially the same argument accepted 

by the court below, that "the Constitution forbids the 

consideration in sentencing of any evidence concerning 

beliefs or activities that are protected under the First 

Amendment." 117 L. Ed. 2d at 318. This Court expressly 

rejected any such "per se" rule. 117 L. Ed. 2d at 316-17. 

The Court held that admission of the evidence at issue in 

Dawson was constitutional error because the particular past 

associations and beliefs of the defendant there "had no 

relevance to" the crime at issue, and were apparently 

adduced "simply because the jury would find those beliefs

as children, who are particularly vulnerable to attack. A  list of such 
statutes is set forth in Appendix A  of the Brief Amicus Curiae of the 
NAACP Legal Defense and Educational Fund, Inc., in No. 88-305, 
South Carolina v. Gathers.



20

reprehensible." 117 L. Ed. 2d at 317-18. But the Court

added that such evidence could indeed be considered, and

provide the basis for a heavier sentence, where the beliefs at

issue were the motive for the underlying crime.

We have previously upheld the consideration, 
in a capital sentencing proceeding, of 
evidence of racial intolerance . . . where such 
evidence was relevant to the issues involved.
In Barclay v. Florida, 463 U.S. 939 . .  . (1983), 
for example, we held that a sentencing judge 
in a capital case might properly take into 
consideration "the elements of racial hatred" 
in Barclay’s crime as well as "Barclay’s desire 
to start a race war." . . .  In Barclay . . . the 
evidence showed that the defendant’s 
membership in the Black Liberation Army, 
and his consequent desire to start a "racial 
war," were related to the murder of a white 
hitchhiker.. . .  We concluded that it was most 
proper for the sentencing judge to "tak[ej into 
account the elements of racial hatred in this 
murder."

117 L. Ed. 2d at 316-18; see Barclay v. Florida, 463 U.S. 

939,949 (1983) (plurality opinion) ("The United States 

Constitution does not prohibit a trial judge from taking into 

account the elements of racial hatred in this murder.").

Wisconsin law makes precisely the distinction 

mandated by Dawson. Section 939.645 does not permit the



21

imposition of an enhanced sentence merely because a 

defendant adhered to racist or intolerant beliefs; had his 

case arisen in Wisconsin, David Dawson’s membership in the 

Aryan Brotherhood would have been irrelevant under 

section 939.645, and could not have led to the application of 

that statute. Wisconsin sanctions admission of evidence 

regarding a defendant’s beliefs only where, as was the case 

in Barclay, those beliefs were demonstrably a factor in the 

commission of the crime at issue.

II. THE DECISION OF THE COURT BELOW IS 
INCONSISTENT WITH THE DECISIONS OF 
THIS COURT AND WITH BASIC PRINCIPLES 
OF CRIMINAL LAW

The interpretation of the First Amendment advanced 

by the Wisconsin Supreme Court represents an extraordinary 

and unwarranted departure from the established principles 

of constitutional and criminal law. The central premise of 

the decision below is that the First Amendment precludes 

the states or national government from considering the 

mental state of a person who committed a forbidden act.



22

The statute punishes the "because of' aspect 
of the defendant’s selection, the reason the 
defendant selected the victim, the motive 
behind the selection. . .  . The physical assault 
. . .  is the same whether he was attacked 
because of his skin color or because he was 
wearing "British Knight" tennis shoes. 
Mitchell’s . . . motivation . . . , his thought 
which impelled him to act, is the reason his 
punishment was enhanced.. . .  Punishment of 
one’s thought, however repugnant the 
thought, is unconstitutional.

(Pet. App. A9-A15) (Emphasis in original).

This proposed constitutional analysis is at odds with

basic principles of criminal law that were universally

accepted at the time when the First Amendment was

adopted. Since at least 1600 it has been a fundamental

precept of Anglo-American law that actus not facit reum nisi

mens sit rea, an act does not make one guilty unless his mind

is guilty. W. LaFave, Principles of Criminal Law 60 (1978).

This requirement was welcomed as a modification of

medieval law, which at times imposed a species of strict



23

liability in criminal law.14 Thus eighteenth century 

authorities were in agreement that no crime was committed 

unless the perpetrator had acted with "an evil intention." 1 

W. Hawkins, A Treatise of the Pleas of the Crown, 65 (1716); 

T. Wood, An Institute of the Laws of England, 340 (1772). 

It is inconceivable that the framers of the First Amendment 

intended to overturn one of the most important principles of 

common law jurisprudence.

To this day proof of some mental element is 

required for virtually all criminal offenses. A number of 

statutes which lacked such a mens rea requirement have 

been struck down as unconstitutional.15 In Screws v. United 

States, 325 U.S. 91 (1945), this Court sustained the criminal 

provision of the 1866 Civil Rights Act from constitutional

14 The evolution of this principle is discussed in F. Pollock and F. 
Maitland, The History of English Law, v. ii, ch. viii, §2 (Milsom, ed., 
1968). Pollock and Maitland trace this doctrine to St. Augustine. Id. 
at 476. Other authorities contend the mens rea requirement had its 
roots in Roman law. Note, 26 Marquette L.Rev. 92, 92 (1942).

15 See W. LaFave and A  Scott, Jr., Criminal Law, 144-46 (1972); 
Lambert v. California, 355 U.S. 225 (1957); Robinson v. California, 370 
U.S. 660 (1962).



24

attack by reading into that section a requirement that the 

prosecution prove the defendant had acted with an "evil 

motive" or "bad purpose", such as "purposeful 

discrimination." 325 U.S. at 101, 103. It is inconceivable 

that such a mens rea requirement, at least ordinarily 

necessitated by the Due Process Clause, is paradoxically 

forbidden by the First Amendment.

The interpretation of the First Amendment endorsed 

by the court below would, if accepted by this Court, wreak 

havoc with the criminal provision of the United States Code. 

That interpretation would, of course, compel the conclusion 

that all six federal laws criminalizing particularly serious 

forms of invidious discrimination are unconstitutional. 

Section 3631 of 42 U.S.C. imposes criminal penalties on any 

person, "whether or not acting under color of law", who uses 

force or threats of force against any other person, "because 

of his race color, religion, sex or national origin" in



25

connection with the sale or leasing of real property.16 

Section 245(b)(2) of 18 U.S.C. imposes similar penalties on 

any one, "whether or not acting under color of law," who by 

force or threats of force interferes with certain federally 

protected activities "because of' the victim’s "race, color, 

religion or national origin." 18 U.S.C. §247(a)(2) prohibits 

destruction of or damage to religious property "because of 

the religious character of that property." Criminal penalties 

are imposed by 18 U.S.C. §246 on anyone who denies 

benefits under certain federally funded programs "on 

account of political affiliation, race, color, sex, religion, or 

national origin." Section 242 of 18 U.S.C., which forbids 

imposing unequal punishments "by reason of . . . color, or 

race", is limited to conduct occurring "under color of law"; in 

United States v. Price, 383 U.S. 787 (1966), this Court held 

that under some circumstances private parties may be

16 The lower courts have consistently rejected First Amendment 
challenges to section 3161. United States v. Gilbert, 813 F.2d 1523 (9th 
Cir. 1987); United States v. Lee, 935 F. 2d 952 (8th Cir. 1991); United 
States v. Palmer, Crim. No. 91-50063-03 (W.D.La), Memorandum 
Ruling, Oct. 30, 1992.



26

prosecuted under section 242. Of the federal criminal civil 

rights statutes, only 18 U.S.C. §243, prohibiting racial 

discrimination in jury selection, is expressly limited to 

conduct by government officials.

Equally clearly, the interpretation of the First 

Amendment adopted by the court below would invalidate all 

eight federal statutes which prohibit acts of violence against 

federal judges, jurors, witnesses, marshals, and other officials 

where those acts were taken "on account of' the 

performance of official duties.17 Also invalid would be 

provisions of Title 18 declaring it a crime to give something 

of value to an official "because of any official act" (18 U.S.C. 

§201 (c)), or to file false claims "with a view to securing 

payment" (18 U.S.C. §550), declaring an accessory after the 

fact any person who aids an offender "in order to hinder . .

17 18 U.S.C. §§lll(a)(2)(persons designated in section 1114), 
115(a) (judge, law enforcement officer, or others designated in 
section 1114), 372 (any person holding any office under the United 
States), 1114 (judge, United States Attorney, United States marshal, 
employee of the F.B.I., or other listed officials), 1201(persons 
designated in section 1114), 1503 (grand or petit juror), 1513 
(witness), 2231 (person executing search warrant.)



27

. apprehension" (18 U.S.C. §3), forbidding discrimination in 

public accommodations against members of the armed forces 

"because of th[eir] uniform" (18 U.S.C. §244), and 

conspiracies and the use of force against any person 

"because of his having exercised" federally protected rights 

(18 U.S.C. §§ 241, 245.) Another thirty federal laws provide 

that a variety of acts are unlawful if, but only if, engaged in 

for a particular "purpose" specified in the statute.18 Still 

other provisions of Title 18 include a requirement of "intent" 

which refers, not to what the perpetrator himself did, but to 

the reason the perpetrator took that course of action.19

The decision below would have a dramatic impact as 

well on state criminal laws. Of course, any criminal law 

prohibiting invidious discrimination would be

18 18 U.S.C. §§47, 288, 494, 495, 500, 505, 551, 594, 595, 598, 599, 
605, 608, 706, 707, 793, 796, 842, 877, 917, 1007, 1010, 1014, 1231, 
1342, 1384, 1582, 1721, 1857, 1951.

19 See, e.g 18 U.S.C. §§33, 215, 549, 953, 1507.



28

unconstitutional.20 Also invalid would be state laws 

providing enhanced penalties where the victim of an assault 

was selected because he or she had engaged in some 

governmental activity. Wisconsin has three such statutes. 

Section 940.20, for example, classifies as a Class D felony a 

battery committed against a witness or juror "by reason of 

the person having attended or testified as a witness or by 

reason of any verdict or indictment assented to by the 

person." The same battery against the same victim would be 

classified differently in the absence of such a motive. Unlike 

the statute at issue in the instant case, which merely 

authorizes an increased penalty, section 940.20 goes further 

and classifies as a serious felony conduct which might 

otherwise be a misdemeanor. (See Wis. Stat. §940.19).21

20 Wisconsin Statutes §942.04, for example, declares it a 
misdemeanor to discriminate on the basis of race, color, creed, 
national origin or disability in various public accommodations, or in 
automobile insurance rates.

21 Section 943.01 classifies as a Class D felony criminal damage 
to property of a witness or juror "by reason of the owner’s having 
attended or testified as a witness or by reason of any verdict or 
indictment assented to by him"; under other circumstances criminal 
damage to property may be a misdemeanor. Section 943.015



29

As amicus Cook County correctly observed in its 

brief in support of certiorari, the decision below calls into 

question the constitutionality of almost all state criminal 

statutes.

Virtually the entire Illinois criminal code, as 
in other jurisdictions, relies on proof of intent 
(indeed, this element of proof operates for 
the protection of those who commit acts 
without mens rea.) With specific intent 
crimes, the State must prove that an 
individual does an act with a further object.
Under each of these statutes, the State must 
prove beyond a reasonable doubt the thought 
process of the offender . . . ,22

Under Wisconsin law, for example, a defendant can be

shown to have acted intentionally if the state proves he or

she acted with "a purpose to do the thing." (Wis. Stat. §

939.23(3)). Conversely, a defendant must be exonerated

under certain circumstances if he or she can show that he or

she acted "for the purpose of preventing or terminating"

classifies as a Class D felony criminal damage to the property of a 
revenue official or his or her family "in response to any action taken 
in an official capacity" by that official.

22 Brief Amicus Curiae Cook County, Illinois, in Support of 
Petitioners, pp.10-11 (emphasis in original; footnote omitted.)



30

unlawful interference with his or her person or property. 

(Wis. Stat. §§ 939.48, 939.49) In Wisconsin, as in every 

other state, there are numerous criminal provisions which, 

like the provisions of Title 18 noted above, require proof 

that a defendant acted with a particular purpose. See, e.g., 

Wis. Stat. §943.10 (burglary requires proof of both unlawful 

entry and a purpose of stealing or committing a felony).

The decision below is also inconsistent with widely 

utilized sentencing practices and statutes. Until now the 

motive which prompted a defendant to commit a crime was 

regarded as an important consideration in determining his or 

her sentence. W. LaFave and A. Scott, Jr., Criminal Law 

208 (1972). Thus it was hitherto thought sensible to impose 

a greater sentence for a burglary if the crime was committed 

to acquire funds to finance a bank robbery. Numerous 

capital punishment laws list among the statutory aggravating 

factors a motive deemed particularly heinous, such as 

murders committed to avoid arrest,23 to prevent

23 See, e.g., Stringer v. Black, 117 L.Ed. 2d 367,375 (1992).



31

testimony,24 or for pecuniaiy gain.25 Under the latter type 

of statute, where two murderers committed identical acts, 

and both subsequently filed claims for the life insurance of 

their victims, they might receive different sentences if one 

murderer merely knew that he would receive the insurance 

payment while the other was actually motivated by that 

fact.26

Of course a defendant in any criminal case might 

seek to win a reduced sentence by proving that he had acted 

out of a sympathetic motive, such as a desire to feed his 

children. But if, as the court below suggests, the First 

Amendment bars enhancement of a sentence because of a 

heinous motive, it must also bar reduction of a sentence on 

the basis of a more benign motives. A statutory scheme

24 See, e.g., Blystone v. Pennsylvania, 494 U.S. 299, 310 n. 1 
(Brennan, J., dissenting) (1990).

25 See, e.g., Lewis v. Jeffers, 111 L.Ed. 2d 606,615 n. 1 (1990).

26 Note, "Fighting Words and Fighting Freestyle: The 
Constitutionality of Penalty Enhancement for Bias Crimes", 101 Col. 
L.Rev. 178, 192-93 (1992), citing State v. Madsen, 609 P.2d 1046, 1053 
(Ariz. 1980), cert, denied, 449 U.S. 873 (1980).



32

which reduced sentences upon proof of a benign motive 

would be difficult to distinguish in practice from a scheme 

which increased sentences for non-benign motives. Under 

either system a criminal who stole for a noxious purpose 

would receive a heavier sentence than one who stole for 

more understandable though still illegal reasons. Under a 

statute authorizing lenity for benign motives, the prosecution 

would be entitled to seek to rebut a claim of benign motive 

by showing, for example, that the defendant in fact acted out 

of racial animus. Cf. Payne v. Tennessee, 115 L. Ed. 2d 720 

(1991). The First Amendment argument advanced by the 

defendant in the instant case could severely limit the ability 

of defendants to adduce mitigating evidence in other 

instances.27

21 The First Amendment cannot preclude a state from 
considering such mitigating evidence, because in capital cases, at 
least, the states are required to consider all mitigating circumstances. 
Eddings v. Oklahoma, 455 U.S. 104 (1982); Lockett v. Ohio, 438 U.S. 
586 (1978).



33

Apparently recognizing the tension between its 

reasoning and longstanding sentencing practices, the court 

below added:

Of course it is permissible to consider evil 
motive or moral turpitude when sentencing 
for a particular crime, but it is quite a 
different matter to sentence for that 
underlying crime and then add to that 
criminal sentence a separate enhancer that is 
directed solely to punish the evil motive for 
the crime. (Pet. App. A17 n. 17)

This purported distinction undermines the lower court’s

entire analysis. If a sentencing judge could impose a heavier

sentence on a defendant who acted with a racial motive, it

is difficult to see the constitutional defect in a statute which

merely authorized that very practice.

If the decision below is correct, it is difficult to see

how this Court could uphold the constitutionality of Title

VII or any other federal, state or local civil rights law. Title

VII, like 42 U.S.C. §1981, prohibits invidiously motivated

discriminatory employment practices, and compensatory and

punitive damages are available under Title VII only for acts

of intentional discrimination. 42 U.S.C. §1981a (1992 Supp.)



34

The court below suggested that Title VII is distinguishable

from the statute at issue in this case, asserting that Title VII

prohibits a "discriminatory act", while section 939.645

assertedly punishes not "an act" but "a mental process." (Pet.

App. A20). Under Section 939.645, it asserted,

[t]he actor’s penalty is enhanced not because 
the actor fired the victim, terminated the 
victim’s employment, harassed the victim, 
abused the victim or otherwise objectively 
mistreated the victim because of the victim’s 
protected status; the penalty is enhanced 
because the actor subjectively selected the 
victim because of the victim’s protected 
status. Selection, quite simply, is a mental 
process, not an objective act.

(Pet. App. A20) This pivotal passage in the decision below 

is virtually unintelligible. Selection decisions by an employer 

are not different from selection decisions by a mugger. In 

the case of a Title VII violation, an employer, having 

decided that its employment needs require the hiring, 

promotion, demotion or dismissal of an employee, selects on 

the basis of race or another forbidden criterion the 

employee to be so treated. If a Wisconsin employer 

launched a campaign of racial harassment that included



35

physical beatings, those beatings would violate both Title VII 

and section 393.645. It is difficult to see how under such 

circumstances the application of Title VII could be valid if 

the application of section 393.645 to the same act for the 

same reasons would violate the First Amendment.

The decision below suggests that Title VII might be 

saved from invalidity if its proposed constitutional analysis 

were limited to criminal statutes. The introduction of a 

generally lower level of First Amendment scrutiny in non­

criminal cases, however, would be a largely unprecedented 

and dangerously far reaching change. The seminal decision 

in New York Times v. Sullivan, 376 U.S. 254, 277 (1964), 

turned on the application to civil libel claims of principles 

that had been first established in a criminal law context. 

Unquestionably the $1.25 million damage award overturned 

in NAACP v. Claiborne Hardware Co., 458 U.S. 886 (1982), 

which would have literally destroyed the NAACP, was 

substantially more serious than the five day jail term upheld 

in Walker v. Birmingham, 388 U.S. 307 (1967). A more



36

stringent level of scrutiny for sentencing statutes would as a 

practical matter mean that the small number of individuals 

who commit serious criminal acts would enjoy more 

constitutional protection than the far larger group of law 

abiding citizens.

The notion that the First Amendment precludes 

consideration of whether a person acted with a 

discriminatory motive is refuted by the very language of the 

Constitution itself. The Fifteenth Amendment prohibits 

denial of the right to vote "on account of race," and the 

Nineteenth Amendment forbids denial of the franchise "on 

account of sex." A court asked to enforce either of these 

constitutional provisions, in the absence of a facially 

discriminatory law or practice, would have to inquire into 

the motives of the officials at issue. Indeed, the free speech 

guarantee of the First Amendment itself requires at times 

that the courts inquire whether a disputed official action was 

motivated by a desire to suppress speech. Renton v. Playtime 

Theaters, Inc., 475 U.S. 41, 48 (1988). It would be



37

paradoxical if the First Amendment prohibited a court from 

inquiring into, or providing a remedy for, a violation of the 

First Amendment itself. Equally importantly, the 

Fourteenth Amendment precludes government officials from 

making selection or other decisions on the basis of race. 

Washington v. Davis, 426 U.S. 229 (1976). If the prosecutor 

in this case had invoked section 939.645 because of hostility 

to black defendants, or out of special solicitude for white 

victims, such an application of that section would have 

violated the Fourteenth Amendment. McCleskey v. Kemp, 

481 U.S. 279 (1987).

Apparently acknowledging that the criminal law can 

consider the intent of a defendant, the court below asserts 

that section 393.645 is invalid because it deals not with 

intent but with motive. For this genuinely revolutionary 

change in First Amendment and criminal jurisprudence, the 

court below relied primarily on an entry in Black’s Law 

Dictionary, insisting that the distinction between intent and 

motive is "crucial." (Pet. App. A ll n. 11). The First



38

Amendment, however, was not adopted to codify the views 

of the editors of this or any other dictionary.28 Other 

authorities maintain that motive is often an essential element 

of a crime,29 that the distinction between intent and motive 

is purely semantic,30 and that intent includes any motive 

which the legislature has required the prosecution to 

prove.31 This Court’s decision in Screws v. United States, 

325 U.S. 91 (1945), used the terms motive and intent 

interchangeably. The more recent and at times arcane 

academic debate about the meaning of and relationship 

between intent and motive cannot provide a basis for any 

constitutional distinction.

28 The distinction between motive and intent in Black’s Law  
Dictionary is not made, for example, in B. Garner, A Dictionary of 
Modem Legal Usage (1987).

29 Hitchler, "Motive As An Essential Element of Crime," 35 
DickL.Rev. 105 (1931).

30 W. LaFave and A. Scott, Jr., Criminal Law  204 (1972).

31 Note, "Fighting Words and Fighting Freestyle: The
Constitutionality of Penalty Enhancement for Bias Crimes," 101 CoL 
L.Rev. 178, 190 (1993); see also W. Cook, "Act, Intention and Motive 
in the Criminal Law," 26 Yale LJ. 645, 661 (1917) ("motive is merely 
a name for a certain kind of desire and intention").



39

III. SECTION 939.645 SERVES IMPORTANT STATE 
INTERESTS

This Court has repeatedly recognized that there is a 

vital governmental interest in preventing acts of 

discrimination.

[T]he State’s strong historical commitment to 
eliminating discrimination . . . plainly serves 
compelling state interests of the highest 
order. . . . .[Discrimination . . . deprives 
persons of their individual dignity and denies 
society the benefits of wide participation in 
political, economic, and cultural life.

Roberts v. United States Jaycees, 468 U.S. 609, 624-25 (1984).

R.A. V  v. St. Paul recognized that the states have a

compelling interest in ensuring "the basic human rights of

members of groups that have historically been subjected to

discrimination." 120 L. Ed. 2d at 325. We set out in

Appendix A the most recent FBI report on bias related

crimes.

The states have a particularly important interest in 

preventing criminal conduct targeted on the basis of, or 

inflicted because of, a victim’s race, religion, or other group 

characteristic. Bias related crimes inflict on the victim an



40

injury wholly different in kind from the physical or financial 

harm caused by ordinary criminal conduct. Such crimes are 

an attack on the right of the victim to participate equally, if 

at all, in American society, and can inflict serious and long 

lasting injury to the dignity of the victim.32 Such attacks 

are likely to induce in the victims a sense of separation from 

and rejection by the larger community "that may affect their 

hearts and minds in a way unlikely ever to be undone." 

Brown v. Board of Education, 347 U.S. 483, 494 (1954). Fear 

of such attacks is likely to terrorize members of the racial, 

religious, or other targeted group in a manner entirely unlike 

fear of ordinary random crime. It is for that reason that the 

investigation of organized attacks of this type are conducted 

under the Domestic Counterterrorism Program of the 

Federal Bureau of Investigation.33

32 People v. Grupe, 532 N.Y.S. 2d 815, 820, 141 Misc. 2d 6 
(N.Y.Crim. Ct. 1988) ("bias-related violence [causes] emotional as 
well as physical scars.")

33 F. Clarke, "Hate Violence in the United States", FBI Law  
Enforcement Bulletin, 14, 15 (January 1991.)



41

Crimes targeted at particular groups are likely to 

deter members of the victimized group from engaging in 

constitutionally or legally protected activities. The somewhat 

sparse legislative history of the Wisconsin law indicates that 

the state was particularly concerned with incidents of this 

sort. The sponsor34 and supporters of the Wisconsin 

legislation pointed to three types of such protected activities 

which had been the focus of crimes targeted at particular 

groups.

First, they cited a highly publicized incident in which 

the home of a black resident in a predominantly white 

Milwaukee suburb had been vandalized.35 One witness

34 We set out in Appendix B the statement issued by the sponsor 
of section 939.645 when it was introduced.

35 Statement of State Senator Mordecai Lee, Senate Judiciary 
Committee Public Hearing on SB 442, January 7, 1988 ("Racial 
epithets were recently spray-painted on the home of a new black 
resident in the Milwaukee suburb or Brown Deer."); Milwaukee 
Community Journal, Nov. 18, 1987 (incidents the bill would cover 
include one in which "a Black woman living in Brown Deer returned 
to her home to find racist epithets scrawled on her door.") Wisconsin 
State Journal, January 8, 1988 ("The bill was motivated by such 
incidents as . . .  the recent spray painting of racist slogans on a home 
bought by a black woman in the Milwaukee suburb of Brown Deer 
. . . . " ) .  '



42

observed that such crimes obstructed Wisconsin’s open 

housing law:

Enactment of this legislation will further 
protect persons who exercise their right to 
live peacefully anywhere by greatly enhancing 
the punishment for criminal acts prompted by 
the race of the target or the target’s 
property.36

This is the same concern which prompted Congress in 1988 

to amend Title VIII to prohibit race based crimes connected 

with the ownership or rental of housing. See 42 U.S.C. 

§3631.

Second, supporters of the legislation pointed to 

criminal attacks against racial and religious minorities that 

had occurred on Wisconsin college campuses. In one 

repeatedly cited incident, members of an all-white fraternity 

at the University of Wisconsin-Madison had assaulted an 

African-American and a Jewish member of another

36 Statement of Robert H. Friebert on Hate Crimes Bill, January 
7, 1988, p.3.



43

fraternity while screaming racial and religious epithets.37 

This concern was consistent with a 1990 Minnesota Police 

Study that noted a serious upsurge in bias related attacks on 

campuses.38 These incidents had become a major factor in

37 Statement of State Senator Mordecai Lee, Senate Judiciary 
Committee Public Hearing on SB 442, January 7, 1988 (fraternity 
members "were assaulted in an incident in which anti-semitic and 
anti-black hostilities were expressed"); Milwaukee Community Journal, 
November 18, 1987 (bill would address recent assault on fraternity 
members "during which anti-Semitic and anti-Black hostilities were 
expressed."); Testimony in Support of AB 599 of Nancy Weisenberg, 
January 14, 1988. p. 2 (fraternity assault demonstrates need for 
legislation.) This assault is also discussed in articles in The Defender 
(November 9, 1987), The Capitol Times (December 19, 1987; 
December 21, 1987), and The Milwaukee Journal (November 1, 1987; 
November 4, 1987.) Other incidents of campus violence directed at 
minority groups are discussed in The Milwaukee Journal, May 6,1987, 
and The Guardian, December 7, 1988.

38 Minnesota Board of Peace Officer Standards and Training, 
Bias Motivated Crimes (1990):

"The incidence of hate violence . . .  on college 
campuses has dramatically increased . . . United 
States Justice Department figures show that the 
number of school-related, racial incidents 
investigated by the department increased by almost 
50 percent in 1988. . . . Over the past several years, 
American Colleges and Universities have 
experienced a disquieting resurgence of racial and 
ethnic intolerance-most notably bias-related violence.
. . .  A  1987 study of ethnoviolence on campus . . . 
reported bias-motivated incidents on seventy 
campuses across the U.S."

Pp. 11-14. See C. Clay, "Campus Racial Tensions: Trend or 
Aberration?", Thought and Education, the NEA Education Journal,



44

deterring minority students from attending the University of 

Wisconsin at Madison.39 It was particularly important that 

Wisconsin deal effectively with such on-campus 

discrimination, because racial incidents which deterred 

minorities from attending a college, or which created a 

hostile educational atmosphere, would place the university 

in violation of Title VI of the 1964 Civil Rights Act, and 

could lead to a termination of all federal financial assistance 

to the school. Cf. 29 C.F.R. §1604.11.

Third, supporters of the legislation expressed concern 

about a series of incidents in which buildings used for 

religious activities had been vandalized because of the

V (l) (Spring, 1990), pp. 21-36; L. Guydon, "Racial Turmoil Rising on 
U.S. Campuses", Pittsburgh Post-Gazette, May 11, 1989; C. 
Leatherman, "More Anti-Semitism is Being Reported on Campuses, 
But Educators Disagree on How To Respond To It," Chronicle of 
Higher Education, February 7, 1990, pp. A39-A40; National Institute 
Against Prejudice and Violence, Ethnoviolence on Campus: The 
UMBC Study, (1987); K. Stern, Bigotry on Campus: A  Planned 
Response (1990).

39 R. Jones, "Racist Incidents Hurt UW Recruiting Efforts", 
Milwaukee Journal, November 1,1987.



45

religion of the congregants.40 Congressional concern about 

similar incidents nationally led to the enactment in 1988 of 

42 U.S.C. §247, which prohibits damage to religious property 

"because of the religious character of that property."

The states also have a vital interest in eradicating 

crimes targeted at distinct racial, religious or other groups 

because of the grave and unique danger that this particular 

category of crime will lead to further criminal acts. The 

example of one bias related crime is all too likely to trigger 

other similar attacks against the same victimized groups. 

Although racial, religious and other biases remain 

regrettably common in our society, few people who harbor 

such views ordinarily vent their biases through criminal acts. 

One such incident, however, may easily set an example that 

other individuals will follow. Equally seriously, even a single 

highly publicized incident can pose a grave risk that

40 Statement by State Senator Mordecai Lee, Senate Judiciary 
Committee Public Hearing on SB 442, January 7, 1988; Wisconsin 
Jewish Chronicle, January 15, 1988; Statement of Robert H. Friebert 
on Hate Crimes Bill, January 7, 1988, p. 1; Wisconsin State Journal, 
January 8, 1988; Testimony of Nancy Weisenberg in Support of AB 
599, January 14, 1988, p. 2.



46

retaliatory crimes will be committed against a victim of the 

same race, religion or ancestry as the original perpetrator. 

"Assaultive behavior motivated by bigotry . .  . readily — and 

commonly do[es] — escalate from individual conflicts to mass 

disturbances." People v. Beebe, 67 Or. App. 738, 680 P.2d 11, 

13 (1981).

Most importantly, crimes targeted at a particular 

racial, religious, or other group threaten, in the words of a 

recent Attorney General, "to tear apart the moral fabric of 

our society."41 The world in which we live reminds us daily 

of the uniqueness and fragility of the tolerance that is the 

birthright of eveiy American. From Sarajevo to the Sudan, 

from the Indian subcontinent to Nagomo-Karabagh, 

communities and nations are today being tom apart with

41 Media Release, April 4, 1991. U.S. Department of Justice, 
Federal Bureau of Investigation, p. 1 (Attorney General 
Thornburgh.). See also Keynote Address by John R. Dunne, 
Assistant Attorney General, Civil Rights Division, Before the Anti- 
Defamation League, October 28, 1992, p. 4 ("I believe that today’s 
‘public enemy no. V is not some bank robber or even some drug 
dealer. In my mind, public enemy no. 1 is that growing mob who 
commit crimes of hatred, tearing deep holes in the fabric that binds 
our society together. Their acts subvert our nation’s promise of 
liberty and equality and they must be stopped.").



47

almost unimaginable ferocity and bloodshed by racial, ethnic, 

and religious differences. The promise of America is that 

the peoples who in the Old World nursed generations of 

hatred will here be able to live, work and prosper peacefully 

together, respecting and enriched by their differences, black 

and white, Arab and Jew, Christian and Muslim, Catholic 

and Protestant, Greek and Turk, Japanese and Chinese, 

Serb, Croat and Bosnian. It is a promise that brought 

millions of immigrants to our shores, and which our nation 

fought a Civil War to keep.

The state of Wisconsin has wisely enacted a variety 

of civil rights laws to safeguard that national commitment. 

The state has concluded, as reasonably it might, that in some 

circumstances the full force of the criminal law should be 

resorted to. That the state and national governments should 

deal firmly and effectively with racially and religiously 

targeted crimes is not merely constitutionally permissible; it 

is a moral and practical imperative in a nation as diverse as 

the United States. The First Amendment does not require



48

Wisconsin to stay its hand until its cities are divided by 

barricades and its neighborhoods have been devastated by 

"ethnic cleansing."

IV. E S T A B L I S H E D  C O N S T I T U T I O N A L  
SAFEGUARDS SHOULD ASSURE THAT THE 
APPLICATION OF SECTION 939.645 IS 
CONSISTENT WITH THE FIRST AND 
FOURTEENTH AMENDMENTS

(1) The court below argued that section 939.645 is

unconstitutional because otherwise protected speech might

be introduced in evidence to prove that a defendant selected

his victim on the basis of race, etc. (Pet. App. A17-A19)

That aspect of the Wisconsin court’s decision is plainly

inconsistent with this Court’s decision in Dawson v.

Delaware. Dawson held that evidence of otherwise protected

speech can in fact be introduced, where relevant, in a

criminal proceeding. 117 L.Ed. 2d at 316-17. A fortiori a

criminal prohibition cannot be invalid merely because such

evidence might be relevant in a proceeding to enforce that

law.



49

Evidence of statements made by a criminal defendant 

are routinely introduced at either the guilt or penalty phase 

of a proceeding. Remarks by a defendant that he intends to 

commit a crime, such as "I am going to kill her"42 or "I am 

going to pick up this guy and rob him,"43 are exceedingly 

probative. Frequently statements by a defendant, such as 

threats of violence44 or the offer of a bribe,45 are part of 

the crime itself. Confessions46 and implausible denials47 

may and often are introduced in evidence.

The existing decisions of this Court, if adhered to in 

the implementation of section 939.645, should be sufficient

42 Lewis v. Jeffers, 111 L.Ed. 2d 606,614 (1990).

43 Blystone v. Pennsylvania, 494 U.S. 299, 301 (1990); see also 
Sawyer v. Smith, 111 L.Ed. 2d 193, 203 (1990) (defendant explained 
his actions were intended to show "just how cruel he could be"); 
Stanford v. Kentucky, 492 U.S. 361, 366 (1989)(defendant proposed to 
kill "whoever was behind the counter" because "a dead person can’t 
talk"); Thompson v. Oklahoma, 487 U.S. 815, 860 (1988)(Scalia, J., 
dissenting) ("We‘re going to kill Charles.")

44 Williams v. United States, 117 L.Ed. 2d 341, 351 (1992).

45 Evans v. United States, 119 L.Ed. 2d 57,65 (1992).

46 Illinois v. Perkins, 110 L.Ed. 2d 243, 252 (1990).

47 Estelle v. McGuire, 116 L.Ed. 2d 385, 394 (1991).



50

to prevent that provision from being abused. Where a 

defendant was engaged in the types of political activity that 

lie at the core of First Amendment values, a state must with 

exactitude distinguish between protected activities and 

activities which are unlawful. NAACP v. Claiborne Hardware 

Co., 458 U.S. 886 (1982). "[T]here must be ‘clear proof that 

a defendant "specifically intend[s] to accomplish [his or her 

aims] by resort to" ’ " criminal conduct. Id. at 919. "[T]his 

intent must be judged ‘according to the strictest law,’ for 

‘otherwise there is a danger that one in sympathy with . . . 

legitimate aims . . . but not specifically intending to 

accomplish them by resort to [unlawful conduct], might be 

punished for his adherence to lawful and constitutionally 

protected purposes . . . Id. The appellate courts have a 

constitutional responsibility to conduct an independent 

examination to ascertain a statute has been constitutionally 

applied. Id. at 915 n. 50.

The likelihood that section 939.645 would have any 

significant chilling effect is remote. In order to be subject



51

to the Wisconsin statute, a defendant must first have 

committed a separate criminal offense. Thus, section

939.645 by its very nature could not have a deterrent effect 

on anyone except an individual who already contemplates 

committing a crime. The number of such individuals is of 

course small in comparison with the total population, and 

criminals as a group are virtually by definition not easily 

deterred by fear of criminal sanctions.

Were a prosecutor to offer evidence of statements on 

racial or religious issues in an attempt to prove the guilt of 

a defendant, the First Amendment problems would be more 

serious. Even individuals who had committed no crime, and 

had no intent to do so, could legitimately be deterred from 

making statements which might result in an indictment and 

trial. The First Amendment has long been understood to 

bar prosecution for impassioned and inflammatory 

statements that fell short of a call for imminent lawless 

action; the use of those same statements to prove complicity 

in a non-speech crime could raise similar constitutional



52

issues. NAACP v. Claiborne Hardware Co., 458 U.S. at 924- 

930. As a practical matter, generalized statements reflecting 

racial or religious bigotry, although quite probative in a Title 

VII case, would be worth significantly less in a case in which 

a plaintiff or prosecutor alleged a defendant had engaged in 

violent conduct. At the height of Jim Crow, when most of 

the white population of the South was biased against African 

Americans and practiced discrimination in virtually all 

aspects of their lives, only a relatively small number of 

individuals resorted to violence to preserve segregation. In 

our own era, although lingering racial and religious 

prejudices and stereotyping remain all too common, most 

Americans who still entertain such views do not express 

them through assault, murder, or acts of terrorism. For 

that reason, evidence of a defendant’s statements regarding 

racial or religious issues may only be adduced to 

demonstrate guilt of a crime where there is a nexus between 

those statements and criminal activity. See, e.g., Barclay v.



53

Florida, 463 U.S. 939 (1983); United States v. Mills, 704 F.2d 

1553, 1558-60 (11th Cir. 1983).

(2) In determining whether to admit into evidence 

statements made by a defendant which reveal racial or 

religious bias, a court must weigh the probative value of the 

evidence against its potential to unfairly prejudice a jury 

against that defendant. See Rule 403, Fed. R. Evid. That 

risk is obviously particularly great where a jury is composed 

largely or exclusively of members of the group against which 

the defendant has made biased statements. Under some 

circumstances the admission of inflammatoiy evidence of 

little or no relevance would violate the Due Process Clause. 

Payne v. Tennessee, 115 L. Ed. 2d 720, 739-40 (O’Connor, J., 

concurring), 743 (Souter, J., concurring) (1991).

(3) Although section 939.645 could literally be 

applied to a defendant who selected as his victim a member 

of his own race or religion, as a practical matter most 

applications of the Wisconsin law will involve crimes 

committed by a member of one racial or religious group



54

against a member of another. The states are free to impose 

an enhanced penalty where a victim was chosen on the basis 

of race, or where a crime was racially motivated, but the 

states may not impose such an enhanced penalty merely 

because the perpetrator and victim were of different races or 

different faiths. A state may not inflict an enhanced penalty 

because of the race of a victim, McCleskey v. Kemp, 481 U.S. 

279, 292 n. 8 (1987), or because of the race of the 

perpetrator. 18 U.S.C. §242. McCleskey makes clear that a 

state could not, for example, impose a greater sentence on 

blacks who kill whites than on whites who kill blacks. Such 

enhanced penalties for inter-racial crimes were one of the 

evils of the Slave Codes and Black Codes which the 

Fourteenth Amendment was adopted to end.

The rule in McCleskey would be entirely eviscerated 

if under section 939.645 a jury were permitted to infer that 

a victim had been selected on the basis of race from the 

mere fact that the perpetrator and victim were of different 

races. The quantum of additional evidence necessary to



55

justify submitting a section 939.645 issue to a jury should be 

great enough to exclude most interracial crimes, and thus 

"genuinely narro[w]" the law. Barclay v. Florida, 463 U.S. 

939, 960 (1983). The Wisconsin courts appear to construe 

section 939.645 to require substantially more than that a 

perpetrator and victim were of different races or religions. 

(Pet. App. A43, A108.)

(4) In the instant case the Wisconsin law requires 

the state to prove beyond a reasonable doubt that a victim 

was chosen on the basis of race or religion, and the jury was 

so instructed. By placing this burden on the prosecution, 

Wisconsin has materially reduced the danger that section

939.645 might be applied under circumstances which would 

violate the First or Fourteenth Amendments. The necessity 

of finding race or religion based victim selection beyond a 

reasonable doubt makes it less likely that a jury would apply 

the section on the basis of statements of little direct 

relevance, or of evidence consisting primarily of the fact that



56

the perpetrator and victim belonged to different religious or 

racial groups.

Many states deal have chosen to deal with the 

problem addressed by section 939.645 by providing that a 

separate crime occurs where a perpetrator selects his a 

victim, or commits a crime, on the basis of race or religion. 

Where state law defines this conduct as constituting a 

distinct crime, a number of constitutional safeguards apply, 

including a requirement of proof beyond a reasonable doubt. 

Although the states enjoy considerable leeway in deciding 

whether to treat motive or conduct as an additional crime, 

or as a factor in sentencing, at some point a sentence 

enhancement could be so great as to require application of 

the constitutional safeguards applicable to proof of a distinct 

crime, including proof beyond a reasonable doubt that the 

greater sentence should be imposed. In the instant case 

section 939.645 increases the maximum permissible sentence 

for aggravated battery, the crime of which Mitchell was 

convicted, from two to five years, and Mitchell was in fact



57

sentenced to four years in jail. Since Wisconsin law itself 

required the prosecution to establish beyond a reasonable 

doubt the applicability of section 939.645, there is no need 

for the Court to determine in this case whether the Due 

Process Clause itself required the prosecution to do so.

CONCLUSION

For the above reasons, the decision of the Wisconsin 

Supreme Court should be reversed.

Respectfully submitted,

ELAINE R. JONES 
ERIC SCHNAPPER 

NAACP Legal Defense and 
Educational Fund, Inc.

99 Hudson Street 
16th Floor
New York, New York 10013 
(212) 219-1900

SAMUEL RABINOVE 
RICHARD T. FOLTIN 
KENNETH S. STERN 

The American Jewish Committee 
165 East 56th Street 
New York, New York 10002 
(212) 751-4000

Counsel for Amici



APPENDIX



APPENDIX A

JANUARY 1993 FBI HATE CRIM E STATISTICS

U.S. Department of Justice 

Federal Bureau of Investigation 

Washington, D.C. 20535 

FOR IMMEDIATE RELEASE

Director William S. Sessions today released the first 

data available from the FBI’s statistical program on hate 

crimes. The program was initiated in response to the Hate 

Crime Statistics Act of 1990 and is being implemented by 

law enforcement agencies across the Nation. "While these 

initial data are limited," commented Director Sessions, "they 

give us our first assessment of the nature of crimes 

motivated by bias in our society." The data cover calendar 

year 1991 and were supplied by nearly 3,000 law 

enforcement agencies in 32 states. Hate crime occurrences 

were recorded by 27 percent of the 2,771 agencies 

participating; the remainder reported no such offenses came

to their attention.



2a

A total of 4,558 hate crime incidents involving 4,755 

offenses were reported in 1991. Among the offenses 

measured, intimidation was the most frequently reported 

hate crime, accounting for 1 of 3 offenses. Following were 

destruction/damage/vandalism of property, 27 percent; 

simple assault, 17 percent; aggravated assault, 16 percent; 

and robbery, 3 percent. The remaining offense types; 

murder, forcible rape, burglary, larceny-theft, motor vehicle 

theft, and arson; each accounted for 1 percent or less of the 

total.

Racial bias motivated 6 of 10 offenses reported; 

religious bias, 2 of 10; and ethnic and sexual-orientation 

bias, each 1 of 10. Among the specific bias types, anti-black 

offenses accounted for the highest percentage, 36 percent of 

the total. Anti-white and anti-Jewish motivations followed 

with 19 and 17 percent, respectively.

Information concerning the offenders was unknown 

for 43 percent of the incidents reported. Considering 

incidents for which suspected race of the offender was



3a

reported, 65 percent of the hate crimes were committed by 

whites, 30 percent by blacks, and 2 percent by persons of 

other races. The remainder of the incidents were committed 

by groups of offenders not all of the same race.

The accompanying tables provide specific hate crime 

data. A more comprehensive report is planned for the 

spring of 1993.

Hate Crime Offense Codes Reported, 1991

Number Percent*

Murder 12 0.3
Forcible Rape 7 0.1
Robbery 119 2.5
Aggravated Assault 773 16.3
Burglary 56 1.2
Larceny-theft 22 0.5
Motor Vehicle Theft 0 0.0
Arson 55 1.2
Simple Assault 796 16.7
Intimidation 1,614 33.9
Destruction/Damage/ 
Vandalism of 
Property

1,301 27.4

Total Number of Offense 
Types

4,755 100.0

*Because of rounding, percentages do not add to total.



4a

Hate Crime Bias-Motivations Reported 1991

Bias-Motivation Number Percent*

R a c e 2,963 62.3
Anti-White 888 18.7
Anti-Black 1,689 35.5
Anti-American Indian/ 11 0.2
Alaskan Native

Anti-Asian/Pacific Islander 287 6.0
Anti-Multi-Racial Group 88 1.9

E th n ic ity 450 9.5
Anti-Hispanic 242 5.1
Anti-Other Ethnicity/ 208 4.4
National Origin

R e lig io n 917 19.3
Anti-Jewish 792 16.7
Anti-Catholic 23 0.5
Anti-Protestant 26 0.5
Anti-Islamic (Moslem) 10 0.2
Anti-Other Religion 51 1.1
Anti-Multi-Religious Group 11 0.2
Anti-Atheism/Agnosticism/ 4 0.1
etc.

S e x u a l O r ie n ta t io n 425 8.9
Anti-Homosexual 421 8.9
Anti-Heterosexual 3 0.1
Anti-Bisexual 1 0.0

Total 4,755 100.0

•Because of rounding, percentages may not add to totals.



5a

Suspected Race o f Offenders in Hate Crimes, 1991

Suspected Race 
of Offender

Number of 
Incidents

Percent

White 1,679 36.8
Black 769 16.9
American Indian/ 12 0.3
Alaskan Native

Asian/Pacific Islander 47 1.0
Multi-racial group 77 1.7
Unknown 1,974 43.3

Total Incidents 4,558* 100.0

*A single incident may involve more than one offense.



6a

Agency Participation in Hate Crime Reporting, 1991

State
Agencies

Participating*
Incidents
Reported

ARIZONA 1 48
ARKANSAS 169 10
CALIFORNIA 2 5
COLORADO 194 128
CONNECTICUT 29 69
DELAWARE 58 29
GEORGIA 2 23
IDAHO 98 33
ILLINOIS 26 133
INDIANA 1 0
IOWA 201 89
KANSAS 3 6
KENTUCKY 1 0
LOUISIANA 6 0
MARYLAND 156 431
MASSACHUSETTS 30 200
MINNESOTA 42 225
MISSISSIPPI 4 1
MISSOURI 18 136
NEVADA 1 I 16
NEW JERSEY 271 895
NEW MEXICO 1 0
NEW YORK 773 943
OHIO 30 80
OKLAHOMA 7 99
OREGON 39 296
PENNSYLVANIA 50 277
TENNESSEE 2 1



7a
-

TEXAS 28 95
VIRGINIA 19 53
WASHINGTON 206 196
WISCONSIN 303 41

Total 2,771 4,558

“"Includes agencies participating in Program whether 
or not any incidents were experienced.



8a

A P P E N D IX  B

STATEM ENT O F SPO N SO R  O F SEC TIO N  939.645

[Letterhead Omitted]

STATEMENT BY STATE SENATOR MORDECAI LEE 
SENATE JUDICIARY COMMITTEE PUBLIC 
HEARING ON SB 442 
JANUARY 7, 1988

One of the great lessons of history is that a system of 

government or justice is only as good as its ability to protect 

the rights of the minority. Right now there seems to be an 

increase in the incidence of crimes that are motivated by 

religious or social hatred, known as ’hate crimes.’ I believe 

we need to keep our history lessons in mind and change 

Wisconsin’s laws to address the problem of hate crimes.

Racial epithets were recently spray-painted on the 

home of a new black resident in the Milwaukee suburb of 

Brown Deer. Swastikas were painted on a synagogue in



Ozaukee County. Catholics were harassed by a group called 

the ’Alamo Foundation,’ and here in Madison members of 

a Jewish fraternity were assaulted in an incident in which 

anti-semitic and anti-black hostilities were expressed.

Representative Louis Fortis and I introduced Senate 

Bill 442 at the request of a broad coalition of organizations, 

including Christian, Jewish, black, disabled and Native 

American groups. This bill is one step toward combatting 

these far-reaching and intimidating crimes.

Senate Bill 442 proposes additional criminal penalties 

when an offense is proven to have been motivated by 

religious or social bias. Secondly, it creates a new category 

of criminal damage to property when such property is a 

church, synagogue, cemetery, ethnic center or ’venerated 

object,’ a term I hope will be added to the bill in a clarifying 

amendment. Finally, the bill gives victims of hate crimes 

more opportunities for civil actions against persons who

commit such crimes.



Fifteen other states, including Ohio and Illinois, have 

recognized the need to enhance penalties for hate crimes. 

It’s important to remember that the victims of hate crimes 

extend far beyond the direct victims of a racially or socially 

biased assault or act of vandalism. Entire communities 

become the victims, and I fear we’re seeing this kind of 

thing more and more often.

I hope that you’ll agree to address the problem of 

hate crimes and support this bill.

_ 10a -