WISCONSIN v. MITCHELL

Legal Principle at Issue

Whether a state statute that increases a defendant's sentence for intentionally selecting a crime victim based on race violates the First Amendment right to free speech.

Action

Reversed and remanded. Petitioning party received a favorable disposition.

Facts/Syllabus

On the evening of October 7, 1989, a group of young black men and boys, including Mitchell, gathered at an apartment complex in Kenosha, Wisconsin. Several members of the group discussed a scene from the motion picture "Mississippi Burning," in which a white man beat a young black boy who was praying. The group moved outside and Mitchell asked them, "Do you all feel hyped up to move on some white people?" Shortly thereafter, a young white boy approached the group on the opposite side of the street where they were standing. As the boy walked by, Mitchell said: "You all want to fuck somebody up? There goes a white boy; go get him." Mitchell counted to three and pointed in the boy's direction. The group ran toward the boy, beat him severely, and stole his tennis shoes. The boy was rendered unconscious and remained in a coma for four days.

After a jury trial in the Circuit Court for Kenosha County, Mitchell was convicted of aggravated battery. That offense ordinarily carries a maximum sentence of two years' imprisonment, but because the jury found that Mitchell had intentionally selected his victim because of the boy's race, the maximum sentence for Mitchell's offense was increased to seven years. That provision enhances the maximum penalty for an offense whenever the defendant "[i]ntentionally selects the person against whom the crime . . . is committed . . . because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person .... " 

Mitchell unsuccessfully sought postconviction relief in circuit court without success, then he appealed his conviction and sentence, challenging the constitutionality of Wisconsin's penalty-enhancement provision on First Amendment grounds. The Wisconsin Court of Appeals rejected his challenge to the law's constitutionality, but the Wisconsin Supreme Court reversed. Relying on R.A.V. v. St. Paul, it held that the statute violates the First Amendment by punishing what the legislature has deemed to be offensive thought and rejected the state's contention that the law punishes only the conduct of intentional victim selection. The state supreme court also found that the statute was unconstitutionally overbroad because the evidentiary use of a defendant's prior speech would have a chilling effect on those who fear they may be prosecuted for offenses subject to penalty enhancement. Finally, it distinguished anti-discrimination laws, which have long been held constitutional, on the ground that they prohibit objective acts of discrimination, whereas the state statute punishes the subjective mental process.