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Hate Crimes and the Mitchell V. Wisconsin Decision

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Hate Crimes and The Mitchell v. Wisconsin Decision

The American Heritage Dictionary defines hate as intense dislike or animosity. However, defining hate as the basis for a crime is not as easy without possibly jeopardizing constitutional rights in the process. Hate crime laws generally add enhanced punishments to existing statues. A hate crime law seeks to treat a crime, if it can be demonstrated that the offense was a hate crime differently from the way it would be treated under ordinary criminal law. Since the 1980s, the problem of hate crimes has attracted increasing research attention, especially from criminologists and law enforcement personnel who have focused primarily on documenting the prevalence of the problem and formulation criminal justice responses to it. Lawmakers have passed legislation to encourage data collection and attach enhanced penalties to hate crimes at both state and federal levels.

When Americans are assaulted merely because of their real or perceived sexual orientation, gender, or disability, the law should be as tough on their assailants as it currently is tough on criminals who attack based on racial, religious, or ethnic bias. Yet only in rare circumstances can the federal government investigate and prosecute hate violence against gays, lesbians, or bisexuals. Attempts have been made to reach a definition of hate crime, including that it is a crime, most commonly violence, motivated by prejudice, bias or hatred towards a particular group of which the victim is rarely significant to the offender and is most commonly a stranger to him or her. The current law (18 U.S.C. 245) permits federal prosecution of a hate crime only if the crime was motivated by bias based on race, religion, national origin, or color, and the assailant intended to prevent the victim from exercising a "federally protected right" (e.g. voting, attending school, etc.) This dual requirement substantially limits the potential for federal assistance in investigating or prosecuting hate crimes, even when the crime is particularly heinous.

Hate crimes demand a priority response because of their special emotional and psychological impact on the victim and the victims' community. The damage done by hate crimes cannot be measured solely in terms of physical injury or dollars and cents. Hate crimes may effectively intimidate other members of the victims' community, leaving them feeling isolated, vulnerable and unprotected by the law. By making members of minority communities fearful, angry and suspicious of other groups and the power structure that is supposed to protect them. These incidents can damage the fabric of our society and fragment communities. The following three areas are concerns about hate crimes legislation:

1) protecting the individuals rights of association and speech;

2) determining the boundaries of the law that will reach and change peoples hearts and minds; and

3) defining people as member of categories or discrete units that are the target of intentional discrimination.

Hate Crimes are becoming more and more common in the United States. In a report released February 13, 2001, the FBI said 7,876 hate crimes were reported in the United State in 1999. The latest figures represent an increase over the 7,755 hate crimes reported in 1998, but the difference may not be significant because more agencies were reporting such crimes to the FBI in 1999. The figures are in the FBI's Hate Crime Statistics, an annual publication. Seventeen people were murdered in incidents classified as hate crimes, compared to 13 in 1998. Of the total the 7,876 incidents, racial bias was associated with 54.5 percent of the cases, followed by religious bias at 17.9 percent, sexual bias at 16.7, percent ethnic bias at 10.5 percent and bias against the disabled at .24 percent. Intimidation was the most frequently reported hate crime, accounting for 35.1 percent of the total. Vandalism accounted for 28.5 percent of the total. Assault and aggravated assault comprised 19 percent and 12 percent, respectively, of all reported hate crimes. The report said that 12,122 law enforcement agencies in 48 states and the District of Columbia reported hate crimes.

Texas had no hate crimes law on the books when James Byrd Jr. was dragged to his death behind a pickup truck. Nor did Wyoming when Matthew Shepard was tied to a fence and beaten to death. And that, Bill Clinton and Ted Kennedy and others claim, is why a federal hate crime law should be enacted. Crimes that are motivated by hate really are fundamentally different, Clinton said after meeting with Byrds sister and nephew, and I believe should be treated differently under the law. Some examples of crimes that were outside federal jurisdiction but could have been prosecuted under the proposed hate crime legislation: In December 1995, self-identified neo-Nazi skinheads murdered two African American residents of Fayetteville, N.C. The victims were selected solely because of their skin color. In April 1994, two African-American men murdered a white father of three in Lubbock, Texas; the killers later stated that they set out to find a white victim. In January 1996, two men in Houston stabbed a gay man 35 times, killing him. Evidence showed that the assailant s bragged about hating homosexuals and had traveled to Houston in part to commit violence against gay people.

Everybody agrees it was a horrible way to treat a human being and openly gay man beaten senseless on the Wyoming prairie and left alone to die in the frigid night tethered to a fence. But Matthew Shepard death, as disturbing as it is, has only re-ignited a set of questions that have slowed efforts to expand federal hate crimes laws: Just what is a hate crime? Should a crime against gays and lesbians be punished differently from one against other Americans? If hate crimes are punished separately, would it deter such violence or encourage it. Shepard death has given new energy to gay or lesbian activists who say existing laws fail to protect them from random violence. It was clear to most Americans that this was a hate crime. This was a crime committed to send a message.

The Supreme Court has already concluded otherwise. On June 11, 1993, the United State Supreme Court upheld Wisconsin's penalty enhancement law, which imposes harsher sentences on criminals who "intentionally select the person against whom the crime...is committed because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person." Chief Justice Rehnquist delivered the opinion of the unanimous Court. This paper argues against the decision, and will attempt to prove the unconstitutionality of

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