In October 1989 a group of young black men in the Wisconsin town of Kenosha saw Mississippi Burning, the film about Ku Klux Klan terror in the early 1960s. As they left the theater, one of the blacks, Todd Mitchell, spotted a 14-year-old white youth named Gregory Riddick. "Do you all feel hyped up to move on some white people?" Mitchell allegedly asked. "There goes a white boy. Go get him!"
They did. Mitchell's friends jumped Riddick and beat him so badly that he suffers permanent brain damage. Mitchell was tried and convicted of aggravated battery -- and of something more ambiguous. After sentencing him to two years in prison for the beating, the court also punished him for his motives. Using a Wisconsin law that permits increased penalties for hate crimes, the judge gave Mitchell two more years of jail time.
A just society will go to great lengths to discourage violent crimes of hatred. Should a free society go so far as to punish the hatred as well as the violence? More than a dozen states have enacted laws that permit courts to increase the jail time for offenders whose crimes have been motivated by prejudice on the basis of such things as race, religion, ethnicity, gender and sexual orientation. Like the speech codes aimed at legislating civility among students on college campuses, hate-crime laws have spawned a controversy among legal scholars and interest groups. At its center is a collision between the 14th Amendment's guarantees against discrimination and the First Amendment's protection of free speech. If the debate were a lawsuit, it would be called Civil Rights v. Civil Liberties.
The Supreme Court struck down a Minnesota law last year that made nonviolent acts of intimidation, like cross burning, a crime. This week the Justices hear arguments over the Wisconsin statute used against Mitchell, which allows bias- related assaults to be punished more severely than the same crimes are treated when bigotry is not a motive. State Senator Lynn Adelman, who is representing Mitchell, complains that such legislation criminalizes thoughts. "What if there was a law aimed at abortion-clinic protesters that said anyone who commits trespass and is also against abortion rights commits a more serious crime and faces enhanced penalties?"
Supporters of hate-crime legislation point out that the principle of enhanced punishment for certain categories of crime is well-established in law: the murderer of a police officer, for example, suffers a greater penalty than someone who kills a civilian. Moreover, the Supreme Court has set limits on the freedom to express certain antisocial ideas, like so-called "fighting words" that incite an immediate breach of the peace.