The Danger of `Hate-Crime' Statutes

BAD public policy often comes from good intentions, especially when what's at issue are the thoughts in people's heads.

This is certainly true of the ill-fated bans on bigoted speech enacted by the University of Wisconsin and other institutions of higher learning. And it's true, I believe, of Wisconsin's law hiking penalties for crimes driven by hate, the constitutionality of which was argued before the United States Supreme Court last week.

I say this not just as a surveyor of legal contention, but as one of the few people on whose behalf Wisconsin's hate-crimes statute has been invoked. Just after midnight on the morning of Aug. 22, 1990, a friend and I were walking home in Madison, just blocks from where Wisconsin's 1988 law was deliberated and passed. Two young males passed us on the sidewalk. Obviously drug-zonked, they turned on us. One struck me in the face. He referred to himself as "Satan" and called my friend "Jew girl." When bysta nders took notice the pair backed off. They were arrested a short while later; "Satan's" resistance sent one officer to the hospital.

This assault occurred amid a spate of highly publicized anti-Semitic incidents in Madison, including the severing of brake lines on a bus used to take Jewish kids to camp. In this charged atmosphere, the district attorney prosecuted 17-year-old "Satan" for a hate crime, which allows adding up to five years to the sentence of criminals who select their victims based on race, religion, ancestry, national origin, disability or sexual orientation.

Some 30 states have passed similar laws. Wisconsin Attorney General James Doyle, in his Supreme Court brief, says it is fair game to consider motive in gauging the severity of crime and that crimes motivated by bigotry are "doubly depraved."

Wisconsin's position is backed by the US Justice Department, the attorneys general of all 50 states, the Anti-Defamation League, the NAACP and even the ACLU. But count me among the dissenters - notably including the Center for Constitutional Rights and journalist Nat Hentoff - who see bad public policy in efforts to punish people for having the "wrong" ideas.

The case under review concerns the prosecution of Todd Mitchell, one of 10 black males who left an apartment complex in Kenosha, Wis., on the evening of Oct. 7, 1989. The group was talking about a scene from the movie "Mississippi Burning" in which white men beat a praying black child. Mr. Mitchell, then 19, pointed to the other side of the street and said, "There goes a white boy. Go get him."

Group members, not including Mitchell, severely beat 14-year-old Greg Reddick, leaving him in a coma for four days. Mitchell, who sought to call off the attackers and summoned help for Mr. Reddick, received the maximum two-year prison sentence for instigating the assault - plus two years under the hate-crimes statute.

LAST June the Wisconsin Supreme Court struck down the statute on First Amendment grounds. The US Supreme Court agreed to hear the case; its decision is expected by early summer.

Observers say the court could rule either way. I hope it strikes a blow for common sense and the First Amendment and keeps this bad law down.

The conduct for which Mitchell, and "Satan," were convicted is already illegal. The additional penalties secured through a hate-crimes statute merely punish defendants for having said the wrong thing: Beat a man and it's battery. Utter an ethnic slur during the beating and it's a hate crime.

Laws against bigotry are political, and subject to the vagaries of politics. In Wisconsin, you can't get extra penalties for deliberately victimizing a woman, or someone who is anti-abortion - or a Yankees' fan. Don't these people deserve full legal protection?

What happens when a criminal hates everyone? Are these crimes less serious?

Prosecutors don't need a bigger book to throw at young blacks - or anti-Semites. (FBI statistics show that hate-crimes are disproportionately enforced against minority-group members.) These laws do nothing to deter crime, and may ultimately teach people that certain forms of expression - "white boy," "Jew girl" - are not just offensive but illegal.

As state Sen. Lynn Adelman, counsel for respondent Mitchell, argued: "Wisconsin will not cure bigotry by punishing it, nor teach tolerance by being intolerant. Locking up or silencing the bigots among us will only bring about the illusion of mutual acceptance and respect, and reliance upon illusions is dangerous."

It's a lesson I hope "Satan" has learned.

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