Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: SUNDAY, April 18, 1993 TAG: 9304180243
SECTION: HORIZON PAGE: B-1 EDITION: METRO
SOURCE: SHARON COHEN THE ASSOCIATED PRESS
DATELINE: LENGTH: Long
THE HATE DEBATE: DO STATES' BIAS LAWS VIOLATE FREE SPEECH?
It was a vicious attack in a quiet Midwestern town 3 1/2 years ago. The assailants were black, the victim white. It was a crime that might have faded into the files quickly if not for one man's words.There never was much question about the deed - a gang pummeling of a 14-year-old boy - but what was said that October night in 1989 is at the heart of a dispute that could have ripple effects across the nation.
On Wednesday, the U.S. Supreme Court will hear debate on whether Wisconsin has violated the Constitution - and the right to free speech - with a law that provides longer sentences for bias-motivated crimes.
At a time when racial tensions and gay bashing are front page news, this case symbolizes these troubled times: It has divided civil libertarians, sparked fears about Orwellian notions of punishing thought and stirred debate about crime and punishment - and bias in America.
"This debate concerns one of the most serious problems we face in our country and threatens our future if we don't deal with it," said Bob Purvis, legal director at the National Institute Against Prejudice and Violence. "Like it or not, we have become the most diverse country in the world."
The case centers on Todd Mitchell, then a 19-year-old black, accused of instigating an angry band of about 10 black teens to attack Gregory Reddick in Kenosha, Wis. The group had been drinking and discussing a Ku Klux Klan member's beating of a praying black child in the movie "Mississippi Burning."
Mitchell reportedly asked "Do you all feel hyped up to move on some white people?" and when Reddick walked by, records show Mitchell pointed and said, "There goes a white boy: Go get him." The victim was savagely beaten, remained in a coma for four days and may have suffered permanent brain damage.
Mitchell - who didn't physically assault Reddick - was found guilty of aggravated battery. A jury concluded the boy was chosen because of his race, allowing the judge to use the bias law to double the sentence to four years.
Mitchell served more than two years before he was freed when the state Supreme Court ruled the law unconstitutional, saying it punished bigoted thought.
Twenty-nine states have laws making bias-related incidents a crime or enhancing penalties for such acts, Purvis said, and a federal bill proposing stiffer sentences also was introduced in Congress this year.
(Virginia's law against hate crimes is more narrowly drawn. Virginia specifically outlawed cross-burnings in 1956 and added painting swastikas on churches, synagogues and schools in 1983.
("These are two pure forms of behavior" said former Attorney General Mary Sue Terry. Virginia's law is drawn to outlaw those acts "apart from any free speech involved with the actions," she said last June.)
Some state measures - including those in New York, California and Oregon - have withstood court challenges, Purvis said, while measures in Wisconsin and Ohio have been ruled unconstitutional.
Wednesday's hearing comes 10 months after the U.S. Supreme Court struck down a St. Paul, Minn., ordinance that banned cross burning, swastika displays and other symbols of racial bias and supremacy. Some justices said the law was too sweeping; others said it violated free speech.
Wisconsin vs. Mitchell is a microcosm of the debate taking place in dozens of states.
On one side are defense attorneys, public defenders, academics and others who argue the Wisconsin law is arbitrary, vague and violates the First Amendment that protects free speech.
"They want to criminalize certain attitudes," said Wisconsin State Sen. Lynn Adelman, Mitchell's attorney. "They want to criminalize prejudice. . . . They can't do that."
Critics also say the law is dangerous because it gives the government too much latitude to deem what is socially acceptable - and that episodes such as the McCarthy era demonstrate how that authority can be abused.
"We're talking about giving the government power to decide what viewpoints to punish and what to protect," said Kevin O'Neill, legal director at the Ohio American Civil Liberties Union. "The government cannot be trusted with that power. How are we going to make sure that one day it won't be used against us, against ideas that we hold dear?"
But defenders of the law, including the state, NAACP and Anti-Defamation League of B'Nai B'rith, insist the measure doesn't stifle free expression and is a legitimate - and necessary - response to heinous crimes.
"It isn't the defendant's belief at stake here," said James Doyle, Wisconsin's attorney general. "It is the selection of the victims for these reasons."
The national ACLU, which in an unusual move split with the Ohio chapter, agrees.
"If your intent is to terrorize people because of their color, that's a different crime than to randomly terrorize someone," said John Powell, the ACLU's national legal director. "It should be punished differently."
Some experts attribute the growth of these laws to increasing violence against minorities, from anti-Semitic vandalism to skinhead assaults and murders.
More than 75 murders across the United States from 1990 to 1992 have been classified as hate crimes by Klanwatch, a Montgomery, Ala.-based research group. Hate-inspired vandalism incidents rose 49 percent - from 216 to 322 - in the same period, the group said.
The FBI says more than 4,500 hate crime incidents were reported in 1991; racial bias was involved in 60 percent of the cases.
Some blame the economy and increasing competition for fewer jobs.
"There's always unrest against immigrants, outsiders, when times are rough - and they're rough right now," said Richard Delgado, an expert on hate speech and law professor at the University of Colorado.
Sometimes, people perceive a threat from within.
"There's a great deal of misperception and fear that affirmative action would result in blacks being unfairly chosen for jobs," said Purvis, whose institute is affiliated with the University of Maryland.
"All these factors fuel the anxiety and fears about the future," he added. "Together with a general increase in violence . . . it creates a deadly mix."
But others say hate crime laws are a fad concocted by elected officials trying to look responsive, while ignoring the more serious underlying causes of these crimes.
"It's very popular for politicians to take a stand against such a thing," said Harry Reinhart, a Columbus, Ohio, lawyer and member of the National Association of Criminal Defense Lawyers, which opposes the Wisconsin law. "Who's going to come out in favor of criminals? And criminals who are bigots are even less likable."
Most state hate crime laws cover race, religion, ethnicity and national origin and about half include sexual orientation, Purvis said.
Wisconsin's law, which also encompasses disabilities, authorizes longer sentences if juries hearing assault or other cases find victims were targeted because of their status.
Judges can add up to five years to a sentence for felonies and up to two years for misdemeanors, depending on the severity of the crime.
The law has been used only a handful of times in felonies, the Wisconsin attorney general's office says. No statistics are kept for misdemeanors.
Mitchell was the only one to appeal in the October 1989 assault. Several adults and juveniles, including his brother, were convicted or pleaded guilty.
Though the incident didn't have the notoriety of some recent high-profile racial cases, all bias-motivated crimes seek to send a signal, argues Delgado, the Colorado professor.
They "have this megaphone effect," Delgado said. "They [criminals] really want to get away with it. What they want is for other people in the victim community to hear about it and be fearful, move into a shell or leave."
"We need to give the judges more leeway," he said.
Reinhart disagrees.
"Bigoted thought is awful and inappropriate," he said. "But I am not about to let the government be the watchdog in this area. This is something we as a society have to deal with."