"Hate Crimes" Trap

If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate. . . . We should be eternally vigilant against attempts to check the expressions of opinions that we loathe. Supreme Court Justice Oliver Wendell Holmes Bat-Wielding Attacker Gets 15 Years for Hate Crime, New York Times, July 18

I saw no angry editorials or columns objecting to the 15-year sentence for Nicholas Minucci—"Fat Nick," as an extra-large Daily News headline celebrated his jailing—for a "hate crime" against Glenn Moore, who is black. Minucci is white. And since the crime took place in Howard Beach, Queens, it recalls for many of us the death, 20 years ago, of a black man chased into parkway traffic there by a gang of white men.

Eight years of Minucci's 15-year sentence were added on because, as he hit Moore on the head with a bat, Minucci kept yelling, "Nigger!" That made it a "hate crime." Those eight years were not because of Minucci's act (the beating of Moore), but for what he said.

So the added sentence is for a thought crime. It has become settled in the majority American mind—as evidenced by the "hate crime" statutes in other states too—that it's not enough to punish someone for an act of violence if the act is accompanied by expressions of bigotry. There has to be more punishment.

The current view of the Supreme Court, that what you say can add prison time for what you do—in a "hate crimes" case—came down in Wisconsin v. Mitchell (1993). The defendant, Todd Mitchell, black, was convicted for "assaulting" a white teenager, and the trial judge added two years to the normal two-year sentence for aggravated battery, making it a "hate crime."

This is what happened in the "assault"—as described in by far the best book on this issue, Hate Crimes: Criminal Law and Identity Politics (Oxford University Press), by NYU law professor James Jacobs and attorney Kimberly Potter.

Todd Mitchell and several friends had just seen the movie Mississippi Burning, about the notorious murders of civil rights workers in the South during the 1960s. In one scene, a praying black youth was beaten by a white man. As Mitchell and his friends left the theater, a white youngster walked by, and Todd Mitchell said to his companions:

"You all want to fuck somebody up? There goes a white boy, go get him." The white boy was beaten so badly that he suffered severe injury. But Todd Mitchell, as Professor Jacobs notes, "did not physically participate in the beating." (Emphasis added.)

The Wisconsin Supreme Court declared the state "hate crimes" law that added two years to Mitchell's sentence unconstitutional because it punished an "offensive motive or thought." But writing for a unanimous United States Supreme Court, William Rehnquist overturned the state court and ruled that "bias-motivated offenses warrant greater maximum penalties across the board."(Emphasis added.)

As that case was moving toward the Supreme Court, I was on the lecture circuit, arguing against the extra prison time for Todd Mitchell—sometimes speaking in tandem with a brilliant, fearless civil libertarian, Susan Gellman, author of an article in the free-speech tradition of Justice Louis Brandeis, "Sticks and Stones Can Put You in Jail, but Can Words Increase Your Sentence?" (39 UCLA Law Review 333, 1991).

Susan and I got a lot of flack, including from a number of ACLU officials because, to my surprise and anger, the national ACLU had supported the dangerous theory behind this eventual Supreme Court decision in Wisconsin v. Mitchell. And yet, the bedrock of the ACLU's founding in 1920 was the First Amendment—after Woodrow Wilson's administration had brutally punished free speech during World War I.

The resultant climate in this country then was such that—as reported in American Legal History (Oxford University Press): "After being tarred and feathered, George Koetzer, a brewery worker of San Jose, California, was chained to a brass cannon in the city park. He was charged with having made pro-German remarks." The government did not intervene.

Recently, only one vote in the Senate prevented passage of the flag desecration act, an amendment to the First Amendment, giving Congress the power to set penalties for burning the American flag as a political expression.

When punishment for an action—like physical assault in the Minucci case—is enhanced by the speech, or other expression, that accompanied it, however offensive, however bigoted, we are abandoning the First Amendment, the engine of all our liberties. As Justice William O. Douglas said—and this is very much in context with the "hate crimes" sentencing of Nicholas Minucci—"the standard of what offends 'the common conscience of the community' conflicts . . . with the command of the First Amendment."

On July 18, Minucci was sentenced to 15 years principally—among robbery and criminal-possession counts to be served concurrently—for "assault in the second degree as a hate crime" causing physical injury. He has been acquitted of the count of "assault in the first degree as a hate crime" causing serious physical injury—after defense testimony by a neurologist at the trial.