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In Wisconsin v. Mitchell,(1) the United States Supreme Court held that the First Amendment does not prohibit a state from enhancing the penalty for a crime if the offender selected the victim because of the victim's race, color, religion, disability, sexual orientation, national origin, or ancestry.(2) In doing so, the Court appeared to back away from its 1992 decision in R.A. V. v. City of St. Paul,(3) which invalidated an ordinance prohibiting cross-burning and other displays tending to offend based on race, color, or religion.(4) Instead, the Court relied on another decision from 1992, Dawson v. Delaware,(5) which re-affirmed that a defendant's beliefs may be used in certain circumstances in determining the severity of sentence.(6)
This Note begins by reviewing the responses of various state legislatures to the incidence of "hate crime." The Note then examines three lines of cases relevant to deciding the constitutionality of penalty-enhancement statutes for hate crimes. This Note posits that the Court answered a crucial threshold question incorrectly and therefore ignored relevant precedent in reaching its decision. Specifically, the Note questions the Court's threshold conclusion that Wisconsin's penalty-enhancement statute merely regulates nonexpressive conduct by arguing that the statute impermissibly regulates speech, or, in the alternative, that the statute impermissibly regulates expressive conduct. The Note concludes that the Court erred in ignoring these two arguments against sentence enhancement by focusing instead on cases addressing the admissibility of a defendant's words and expressive conduct during standard sentencing procedures.
II. BACKGROUND
To put Mitchell in perspective, one must look at the case from two viewpoints. First, one must consider the various paths states have taken to address the perceived increase in hate crime. Second, one must consider the thicket of First Amendment doctrine through which these paths must wend.
A. STATE RESPONSES TO HATE CRIMES
Three and one-half months before the Supreme Court heard oral arguments in Mitchell, the federal government released its first national report on hate crimes.(7) This report, compiled by the Federal Bureau of Investigation, showed that 4558 hate-crime incidents involving 4755 offenses were reported in 1991 in the thirty-two states participating in the study.(8) Intimidation was the incident most frequently reported, accounting for about a third of all offenses.(9) Vandalism was next at 27%, followed by simple assault (17%),...