Wisconsin v. Mitchell - Oral Argument

Argument of James E. Doyle

Chief Justice Rehnquist: We'll hear argument first this morning in No. 92-515, Wisconsin v. Todd Mitchell.

General Doyle.

Mr. Doyle: Mr. Chief Justice, and may it please the Court:

The Wisconsin penalty enhancement statute quite simply does not punish thought and it does not punish the expression of any idea or belief.

It punishes criminal conduct.

Mr. Mitchell was and is free to think any thought he wants to think.

He was and is free to express that thought in any legitimate manner.

But when he violates the Wisconsin criminal code he subjects himself to the punishment of the State of Wisconsin, and it is perfectly appropriate for the State of Wisconsin through its legislature and courts to consider his reason for committing the crime in determining what the appropriate sentence should be.

On the face of this statute there is no reason to suggest that Wisconsin is involved in some sinister motive to control thought.

The statute is in our brief at page 3, and we believe that it quite clearly serves two very legitimate state interests.

It punishes criminal conduct and assesses the appropriate penalty range for a particular type of crime, and it addresses the harmful effects of discriminatory conduct.

Nobody suggests that Wisconsin's interest in dealing with the harmful effects of discriminatory criminal conduct are not substantial.

45 other states in this country have adopted laws of some sort attempting to deal with this problem.

Unknown Speaker: General Doyle, your state supreme court was of the opposite view.

I mean your state supreme court said that in fact this, or in law, I don't know which, this statute does control thought.

Now, are we bound by... it's after all their statute.

It's not ours.

Are we bound by their determination as to what it is directed at?

Mr. Doyle: It is our view that the Supreme Court of Wisconsin decided in law that the Wisconsin statute punished thought.

They did not go through any kind of statutory construction, there was no issue about the meaning of a particular word, there was no discussion of legislative history, there was no ambiguity in the statute.

They came to a conclusion in which they declared that the statute punishes thought.

That is a, in my judgment a conclusory constitutional statement.

In fact that's the same as saying it violates the First Amendment.

Unknown Speaker: But if some other state supreme court came to the same disposition that your state supreme court but used legislative history and decided as a factual matter that it had been intended to punish thought, then we would have to come out differently in your view?

Mr. Doyle: It very much depends on what the analysis was.

If it turns on the meaning of a phrase, if it turns on the meaning of what particular language means, I think you would have to respect the decisions of the state supreme court with respect to what the language is on the statute.

But when you are dealing with what the practical effect in First Amendment terms is of a particular kind of statute, and balanced against First Amendment standards, then I think that you may, that that's a First Amendment question that this Court may consider.

Unknown Speaker: You, in other words you're saying that their comments were directed to the First Amendment consequences of this statute?

Mr. Doyle: Yes, Your Honor.

And in fact in reading that opinion it's quite clear that they not only looked at the Wisconsin statute, they in fact declared what hate crime, as they declared it, hate crime statutes in general what the First Amendment consequences were.

They looked at the model ADL statute for example and declared what these kinds of, what these kinds of laws mean in First Amendment terms.

Unknown Speaker: Yes.

That's on page A8 and A9 of the Appendix.

The discussion of the model statute is right after the comment that Justice Scalia has in mind, I think, because the state court does say without doubt the hate crime statute punishes bigoted thought.

And the state asserts the statute punishes only conduct.

We disagree.

That does sound like a state law conclusion that's binding on us.

It's certainly questionable.

Mr. Doyle: Your Honor, I believe that that is their conclusion, that they then lead into their reasons.

They then go to the ADL statute and then at page 37 of the Appendix, the Joint Appendix and their opinion, they say that the Wisconsin statute, based on the history of these anti-biased statutes, plural, looking at anti-biased statutes in general punish bigoted bias.

So I believe that the Wisconsin Supreme Court was taking a very broad look at what it, at a genre of laws that it labeled hate crimes.

Unknown Speaker: Well, ordinarily we decide what a statute is directed at by the terms of the statute itself, I take it, don't we?

Mr. Doyle: Well, that's correct, Your Honor.

I believe what the Wisconsin Supreme Court has not put into its opinion and that I would ask this Court to look at directly are the terms of the Wisconsin statute.

The terms of the Wisconsin statute, for example with respect to what is punished, states very clearly that the penalties for the underlying crime will be enhanced.

It is the punishment for the underlying crime that is being enhanced by this.

So on the face of the Wisconsin statute we have a statute that is punishing the criminal conduct of Todd Mitchell, not some abstract thought that he may have engaged in.

Unknown Speaker: I take it you make no distinction between, or do you, a statute which simply enhances a sentence for this kind of conduct and a hypothetical statute say in another state which makes this a substantive crime of, in a free-standing statute.

I take it there would be no difference, or would there?

Mr. Doyle: I believe there is no constitutional difference, although let me add I think the Wisconsin case is even cleaner than the second one that you gave, that because in order to get into the enhanced punishment... we have not tried to create any type of new crime.

You have to violate the generally applicable laws of the State of Wisconsin in order to even be eligible for the penalty enhancement.

So we don't run into some of the problems that some other attempts at this, some other states may have attempted of trying to define some new kind of offense.

We have dealt with this strictly as a sentencing matter.

Let me say that I believe that the state's interest in dealing with these problems is evidenced by the facts of this case itself.

Todd Mitchell participated in the brutal beating of a 14-year old boy walking down the street of his home town in Kenosha, and the facts of this case are very clear that that young 14-year old boy would never have been beaten except for his race.

This case, Wisconsin's statute was in place, fortunately, which quite directly dealt with that kind of criminal conduct.

It assessed the, the Wisconsin legislature assessed the kind of, had determined the appropriate sentencing range and the judge assessed the proper sentence for the criminal conduct that was involved in this case.

Unknown Speaker: I would guess in most cases you're not going to get nearly as clear of an evidentiary finding as you did in this as to the motive for the crime?

Mr. Doyle: It is likely you would not find one so clear.

This is obviously a very clear case.

But let me say Wisconsin is, again has afforded the defendant an added protection that I don't think even Dawson would require, for example, which is the factual basis that he intentionally selected the victim because of the victim's race must be there and it must be proven by the prosecutor beyond a reasonable doubt.

So the defendant in this case, this is not simply a judge saying that I have heard the evidence and I believe based on the evidence that there was a motive that I am going to impose a higher sentence than I would normally impose.

This is a finding by a jury, proven by the prosecutor beyond a reasonable doubt that the victim was selected because of the victim's race.

Unknown Speaker: Is that submitted to the jury at the same time that the substantive criminal offense is tried?

Mr. Doyle: Yes, it is.

The jury is given a special verdict under the Wisconsin penalty enhancement statute and it is, they return two verdicts, guilt or innocence on the charge and as well as the question on whether or not the defendant intentionally selected the victim because of the victim's race, or whatever the particular status may be in the case.

And it is that point, I believe, that is extremely important in this case.

What the Wisconsin statute does is look at the intentional selection of the victim.

There is a lot of talk about biased thought, hate thought, and so on.

The Wisconsin statute does not go after biased thought or hate thought.

We don't know whether Mr. Mitchell had racial bias or not.

It's likely he did given the facts of the case, but we don't know.

And to a large measure in Wisconsin we don't care.

For example, Mr. Mitchell might have selected that victim because of his race simply to show off to the group of young men that was around him about how tough he was or some other reason.

We don't know.

Mr. Mitchell may have the benignest thoughts about race relations as are possible, and yet he would be guilty under the Wisconsin law because he intentionally selected the victim because of the victim's race.

Unknown Speaker: Is there any limit on the reasons for selection that the state can specify for higher punishment?

I mean, could it say if you select a victim on the basis of whether or not he believes in the hole in the ozone layer?

Could you do that?

Or whether he believes that the earth revolves around the sun rather than vice-versa?

Mr. Doyle: I believe that in view of the state if the particular category serves a legitimate state interest and meets equal protection tests and meets vagueness... some of the examples you have given, Justice Scalia, I think would be difficult obviously to put into a statute that would meet the vagueness test.

But if it meets those, that--

Unknown Speaker: It has to serve a legitimate state interest?

Mr. Doyle: --I believe that--

Unknown Speaker: So one has to judge whether being against flat earth people is less important than being against people who don't like particular religions, for example?

Mr. Doyle: --No, that would not be the legitimate state interest.

The legitimate state interest is if, for example, you have had a problem in your state, there is a large debate going on about flat or round earth and there have been a great number of fights that have gone on in your state for a period of time and the state legislature decides that the violence attached to this debate is one that needs to be addressed and that people who are acting out of, who are selecting victims because of that reason present a particular danger to the community, then I think the state could act.

Unknown Speaker: Okay.

So it isn't the goodness or badness of the idea that you're talking about, it's whether attacks on the basis of that idea are a particular problem?

Mr. Doyle: That's right, whether they present, in a traditional criminal context that they present a significant law enforcement problem to the State of Wisconsin.

Unknown Speaker: So therefore, going back to your prior argument, it wouldn't make any difference whether the reason in this case in fact was the expression of the bigotry?

Mr. Doyle: I think that in my judgment it would not, and I believe in Dawson, if in fact the statute was strictly limited to racial motives, which the Wisconsin statute isn't, if it were that Dawson would suggest that that would be appropriate.

But I do want to point out the Wisconsin statute is one step removed from that.

Wisconsin was very careful in drafting this statute.

It used language that is found very clearly patterned and found in hundreds of anti-discrimination and civil rights laws, some of them civil, many of them criminal, contrary to the assertion of the Wisconsin Supreme Court, in which people are prosecuted for conduct that is carried out on the basis of race, religion, and other types of motives along those lines.

Unknown Speaker: General Doyle, going back to this line of inquiry and looking back at the days of the Vietnam conflict, do you suppose it would have been all right then for the state to enhance the penalty for draft card burning if it's done because of opposition to Government policies, for example?

Mr. Doyle: I believe there are some categories that should very clearly raise a concern in the court, in courts on whether or not there is suppression of ideas that are afoot.

And I believe certainly a category that mentioned opposition to a Government policy would be such a category.

And I think that the court then should look to see--

Unknown Speaker: I don't see how that's very different from what you have here necessarily.

Mr. Doyle: --I think the--

Unknown Speaker: I mean, we want to suppress the notion of racial bias.

Mr. Doyle: --Wisconsin, while I think we would all like to do away with the notion of racial bias, Wisconsin by this law and by the face of this law is not seeking to suppress racial bias or the notion of racial bias.

It is seeking to address the harmful effects that result when somebody engages in criminal conduct in which they have selected the victim because of that, the victim's race.

This is not a statute where we have attempted to outlaw cross burning or other kinds of expressive communicative conduct.

Unknown Speaker: Is it a question of proximity, how proximate is the conduct to the thought?

Mr. Doyle: Yes, I think certainly it is.

I think for example if you had a statute that said all drunk drivers who are racist will receive an extra year in prison, I think under Dawson quite clearly that would be a violation of the First Amendment.

And again Wisconsin statute has been drafted very carefully to create that nexus with the term because of.

Not only is the nexus there, but in Wisconsin it has to be proven beyond a reasonable doubt in order for the enhancer to apply.

Unknown Speaker: Does the difference between the draft card burning enhancement and the enhancement here rest on the fact that no one burns draft cards except as, in effect as political statements, whereas people do commit assaults for different reasons?

So that there is no justification in, as it were, in an increased deterrence in the draft card case, and therefore the only purpose that's being served by the draft card enhancement is simply kind of an extra punishment of the thought?

Mr. Doyle: I believe that that is correct in the draft card, particularly when you're dealing with the motive being opposition to a Government policy.

I think in that case the court should consider whether there is Government suppression of ideas afoot and should consider whether there's a legitimate state interest in the enhancement.

And I think it would be very difficult to articulate a legitimate state interest in choosing one side of the debate.

The better analogy to the Wisconsin--

Unknown Speaker: But, excuse me, I thought we were presenting from that whether the objectives are good or bad, but you say the objectives have to be a legitimate state interest?

See, I thought from your initial answer to Justice Souter that you would have said, or I gathered from Justice Souter's question that it's a different case if you say you get an enhanced penalty for assault if the reason for your assault is that the person you assault favors the Vietnam war.

You would say that's bad too, wouldn't you?

Mr. Doyle: --I would say that that would, it's far removed from the Wisconsin example, but I think that it would present to the court a legitimate concern that the Government is attempting to suppress ideas of the Government.

The analogy that is closer to the Wisconsin is if you say there is an assault and the reason for the assault is because of beliefs about the war, without choosing one side or the other, would serve the state purpose that because of increased criminal activity that may come, without any suggestion that the state is taking one side or another in a particular political debate.

Let me, if I might follow up on that, I want to be clear that in my judgment I do not believe the state is taking sides in this.

This is much of what goes on in this kind of, in this debate.

We are... if there were an example in which the judge had a 7-year range of sentences at the beginning and the judge said I would normally give 1 year in this case but I'm going to give 2 more because based on the evidence I have seen I see that you were, you moved only because of the victim and I think you present a greater danger to the community because of that, I think that that would be perfectly appropriate.

In this case--

Unknown Speaker: What if in the draft card case the statute said that your penalty would be enhanced if you did it because of disagreement with the person's views about the Vietnam war, whether they were pro or con?

Mr. Doyle: --In my view that would, assuming that there is in fact, as there was, a real disruption, I think that that would be constitutional.

I would like, if there are no further questions I would like to reserve.

Unknown Speaker: Very well, General Doyle.

Mr. Dreeben.

Argument of Michael R. Dreeben

Mr. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:

Wisconsin's sentence enhancement provision is valid under two lines of this Court's cases.

First, Government may combat discrimination in crime just as it combats discrimination in other contexts by punishing the conduct that is motivated by the race, religion, or other status of the victim.

It is settled that such anti-discrimination provisions do not infringe First Amendment rights.

Secondly--

Unknown Speaker: You have to be an equal opportunity criminal?

Is that it?

You're punishing the person for not being indiscriminantly violent?

Mr. Dreeben: --No, Justice Scalia.

What's being punished by a race-motivated crime or a crime that's motivated by the status of the victim are the particular harms that flow to victims as a result of that kind of crime.

Race-motivated crimes this Court has recognized is degrading to the victim, it tends to intimidate the victim in the victim's exercise of his civic and civil rights, and it touches all other members of the class to which the victim belongs and intimidates those members of the class in the exercise of their rights.

And it is those additional harms that are inflicted by status-based crime that justify the legislature, as Wisconsin has done and as the Federal Government has done, in targeting that kind of crime for increased sanction and increased deterrence.

Unknown Speaker: So what we have is a crime that itself presents a substantive evil that the state can prevent quite without regard to the thoughts and beliefs of the actor?

Mr. Dreeben: That's exactly right, Justice Kennedy.

And I think that the key inquiry that the court has to make when confronted with a law like this and there's an allegation that the state is in some sense punishing motive or thought is whether the law is justified by reasons that relate to free expression and free thought or whether it's justified by purposes that the state does have a legitimate interest in suppressing, wholly apart from punishing belief.

And the Court has made that inquiry in many different contexts whenever it confronts a law that regulates on its face conduct and there's a claim that there's some sort of expressive component underlying it.

The inquiry has to be made by looking at the text, the history, the application of the law by the state, and the interests that are asserted by the state.

Unknown Speaker: What do you mean by suppressing, it has an interest in suppressing?

The state cannot suppress hatred of certain religions or certain races, can it?

I mean, it can't throw somebody in jail for that.

Mr. Dreeben: That's correct, Justice Scalia.

Unknown Speaker: What the state can do is to foster the opposite, to show its disapproval of that attitude.

It's entitled to do that, right, in statements by the President, in pronouncements by the Congress?

Correct?

Mr. Dreeben: Well, those--

Unknown Speaker: But it can do that for patriotism as well, couldn't it?

Mr. Dreeben: --That's correct.

Those are--

Unknown Speaker: So can you punish a crime more severely if the crime demonstrates a lack of patriotism?

Mr. Dreeben: --No.

I think the entire point that I'm trying to make in this area is that if the interest of the Government is to regulate conduct, regulate thought and speech per se for its own sake, then that is not a legitimate interest.

That's exactly what the Court was speaking of in Dawson v. Delaware when it held that the Government may not punish in the abstract the holding of a particular belief or the holding of a particular idea.

What it may do is address the harms that flow from the conduct that is bound up with status-motivated crime.

Unknown Speaker: I thought you acknowledged that there's some limit on that, that even in doing that the state can seem to be trying to suppress an idea, and then it would be bad.

That's what I thought you were acknowledging.

Mr. Dreeben: I acknowledge that if the court determined that the law's purpose and effect is really to get at thought and not to get at the conduct that is manifesting the harms in question, then you have a different case.

And that is exactly the kind of inquiry that the Court undertook in the Barnes v. Glen Theatre case to determine whether a law against public nudity was really aimed at expression.

Unknown Speaker: But if a state is concerned that a wave of intolerance is causing injury it can act both because it disapproves of that intolerance and of the injury.

I take it a state, if there were a rash of burnings and defacement of churches, could pass a statute making it a crime to burn or deface a church.

Or would you agree with that?

Mr. Dreeben: I would agree with that.

That's entirely within the power of the state to deal with.

The kind of problems that flow from conduct like that are objective and they relate to the protection of citizens, and this law very clearly relates to the protection of citizens.

There can be no doubt that in this country there is a genuine problem with status-motivated crime that affects the injuries to victims and the intimidation in the exercise of rights that Federal law has long reached out in an attempt to regulate.

Unknown Speaker: What if a state which had no history whatsoever of any race-motivated crimes, there simply had never been any in that state, what if that state were to pass a statute like Wisconsin's?

Would it be subject to any additional scrutiny than Wisconsin's is?

Mr. Dreeben: In the particular area that this law deals with I don't think there would be any additional scrutiny because the nation has experienced such problems in this area that it cannot be, there can be no doubt whatsoever that the state's motivation in enacting such a law is real and legitimate.

Unknown Speaker: Disability?

Have we had a rash of people going around beating up on the handicapped?

I'm not aware that that's... I mean, I can understand the other things, religion, race, yes, sexual orientation, national origin or ancestry, but not disability.

Mr. Dreeben: Well, I think of all the categories that are in the list the category of disability is one that is most easy to understand, that the disabled status of a victim may make that victim more vulnerable to crime and the state clearly has a heightened interest in protecting that--

Unknown Speaker: But is there any evidence that disabled people have been beaten up because they are disabled?

Mr. Dreeben: --I don't know that there is any evidence in this record.

There is clearly evidence in Federal policy reflected in the anti-discrimination laws.

Unknown Speaker: Yes, but I thought your argument was that, in response to Justice Kennedy's question, if there are a rash of church burnings, sure, the state, the Federal Government can come in and legislate about that.

But here we're talking about a situation where there hasn't been a rash of anything so far as anybody knows, so far as attacks on the disabled because they are disabled.

Mr. Dreeben: It may be evidenced in a particular case that there is no real-life problem that the state is attempting to regulate, that the state has some other goal in mind.

I don't think there is any suggestion in this case that Wisconsin added disability to the list of prohibited status-based crimes in order to suppress views about disability.

But it would be a relevant inquiry for the court to make when confronted with a law that reached beyond these very core problems that have affected our society and dealt with something more remote like opposition to Government policy or opposition to war or views on the flat earth issue.

Those things would raise greater questions just on the face of the statute about whether the state had in mind the regulation of thought or speech as opposed to the goals that we say are furthered by this law.

The theory of the Wisconsin Supreme Court that simply because the underlying crime is already punished the enhancement must be directed at thought is a theory that if accepted is broad enough to invalidate this nation's anti-discrimination laws.

All of the Federal laws that deal with anti-discrimination look to the motive of the actor in assessing whether the conduct is in fact the sort of discrimination that's meant to be prohibited.

This Court noted that as recently as yesterday's opinion in the Hazen Paper Company case, that it is the motive of the actor that is the focus of the law and without an impermissible motive the conduct in question is not regulated.

But the Court has also recognized in upholding the constitutionality of those laws that simply because motive is an element does not mean that it is Government's goal to target thought for its own sake.

What Government has done in these laws is attempt to reach the evils that occur as a result of discrimination.

And in the context of race-motivated crime I think those evils are very apparent, very worthwhile for Government to take efforts to suppress, and there is no indication whatsoever that the underlying goal here of the Wisconsin legislature is somehow to punish speech or thought for itself.

Unlike the law that this Court had before it in R.A.V., Wisconsin is not regulating speech in any form or expressing disapproval of disfavored ideas for its own sake.

The citizens of Wisconsin are entirely free to hold bigoted beliefs and to express bigoted ideas.

What they may not do under the mantle of the First Amendment is to claim immunity for the added harms inflicted by their status-based crimes.

Thank you.

Unknown Speaker: Thank you, Mr. Dreeben.

Mr. Adelman, we'll hear from you.

Argument of Lynn S. Adelman

Mr. Adelman: Mr. Chief Justice, and may it please the Court:

This statute punishes thought, thought which the Government disapproves.

Todd Mitchell got 2 years for aggravated battery and he got 2 more years on top of that because he was biased against white people.

This bias is a crude and ugly one, but it was nonetheless a viewpoint.

And if we punish Todd Mitchell's viewpoint we have to be prepared to condone punishment of any viewpoint.

Unknown Speaker: It seems to me he was punished because, not because of his bias but because his bias led him to pick out a victim because of the victim's race.

There are many forms of thought that are not punishable but that become punishable when translated into action.

It seems to me that's all that happened here.

Mr. Adelman: He was punished for the conduct by the battery statute.

The enhancer that is at issue in this case punished him solely because of his biased motive.

All the conduct that he committed was already separately punished.

Unknown Speaker: But I have just indicated that there are many sorts of thoughts that you have that are protected as such but that cannot be put into action, and I don't see how this case is really a very remarkable deviation from that simple proposition.

Mr. Adelman: Your Honor, the state can't ever punish a viewpoint.

The proper position of the state with respect to beliefs and ideas is one of epistemological humility.

The state can't separately and additionally single out a racial bias or a religious bias or a bias against homosexuals or a bias against people who have some particular view on the abortion issue and punish those biases.

Unknown Speaker: What about title VII?

I mean, I can fire somebody because I don't like the way he combs his hair.

I'm entitled to do that as far as Federal law is concerned.

But I can't fire that same person because of his race, religion, and so forth.

Are those laws bad?

Mr. Adelman: No.

Title VII and the other anti-discrimination laws are distinguishable.

Those laws punish effects.

They're not interested in bigotry.

They're interested in discrimination.

Unknown Speaker: But they don't punish effects.

I could produce the same effect firing this individual.

It's only because I have this motive in firing him that I am held liable.

Mr. Adelman: They do... Your Honor, I believe that this Court said in Griggs that you could prove a title VII violation for example on a disparate impact theory.

If you can prove a violation of the law on a theory that doesn't involve motive... motive, even if motive is used in title VII it's inextricably intertwined with the conduct that is punishable.

The difference between title VII and the enhancer laws is that you can't get at the discriminatory conduct without also implicating the motive.

This--

Unknown Speaker: This is inextricably intertwined.

The person is not punished unless he has committed the crime, the substantive assault or whatever it is.

Would your objection be eliminated if it were not an enhancer, if there were let's say no law against assault unless you assault because of the person's race?

That would be okay by analogy to title VII?

Mr. Adelman: --No, Your Honor.

That, that law would be in many respects irrational.

But the point with this case is that the conduct is already completely punished.

The State of Wisconsin has chosen on top of that to impose a separate and additional punishment solely because of these particular beliefs.

It's not--

Unknown Speaker: Do you want us to pretend that the anti-discrimination clause that protects minorities in employment is not motivated at least in substantial part by our concern with racial intolerance?

Mr. Adelman: --Your Honor, the interest that's served by title VII is that of providing equal opportunity, equal opportunity to people who have been historically discriminated against.

Equal opportunity is very different than bigotry.

There's no interest of equality or equal opportunity involved in this particular statute.

There's no equal opportunity to battery.

So the statutes are very different in that respect.

They serve different interests.

One targets bigotry, one seeks to promote equal opportunity.

This statute says nothing about harms or effects.

It speaks only of certain prohibited biases.

The statute punishes some biases, for example a racial bias, but it doesn't punish other biases, for example a gender bias.

Unknown Speaker: Could you give me an example of how it might speak in terms of harms and effects in a way that would legitimize it?

Mr. Adelman: Yes, Your Honor.

There are numerous content-neutral alternatives which would serve the state's asserted interests equally well, if not better.

One content-neutral alternative is present sentencing practice where judges every day of the year--

Unknown Speaker: Wait a minute, I thought you were objecting to the statue, statute rather, in its terms.

So what would be the difference in the terms of the statutes couched in terms of effects that would legitimize it?

Mr. Adelman: --This statute is directed at motive.

An enhancer, if you wanted to have an enhancer you could have an enhancer based on, follow the Federal Sentencing Guidelines which has a model enhancing penalties where there is a vulnerable victim.

Or if you want to get at terror or emotional--

Unknown Speaker: You don't object then to the statute insofar as it refers to disabilities, victims with disabilities?

It's simply the mental connection between the act and the disability of the victim that taints it?

Mr. Adelman: --The because of is the problem with this statute.

The Wisconsin statute--

Unknown Speaker: Well, if you didn't couch the statute in terms of because of wouldn't your sentencing in effect be a potentially random act?

If the statute did not describe a sentencing criterion in terms of the motive for the act you would seem to allow the sentencer to say well, if the victim turns out to be a disabled person I'll go ahead and add a kicker if I want to, but that need not in fact have any relationship to the circumstances of the crime beyond the possible fortuity of the victim's disability?

Is that what you would be allowing?

Mr. Adelman: --No, Your Honor.

Most criminal statutes define the conduct in terms of two elements, the actus reus and the mens rea, that is intent.

Intent is different than motive.

What's wrong with this statute is that it doesn't talk about intending to batter someone who is disabled.

It talks about the why, the underlying belief system.

That's what the Wisconsin Supreme Court interpreted the because of to mean, and that's the problem with the statute.

The statute is phrased in terms of the belief system of the perpetrator.

Unknown Speaker: Mr. Adelman, can I question that for a moment?

Mr. Adelman: Sure.

Unknown Speaker: Supposing the criminal planning the crime thinks that white people are not as well able to defend themselves as people of other races and for that reason they are sort of easy victims, and therefore makes a practice of always selecting white victims and makes that clear.

And say the defendant is himself white and therefore has no bias against whites.

Would he not violate the statute?

Mr. Adelman: Your Honor, no.

The Wisconsin Supreme--

Unknown Speaker: He selects his victim because of his race.

Mr. Adelman: --The Wisconsin Supreme Court interpreted the because of to mean biased motive.

That construction is binding on this Court.

The underlying conduct of intentional selection occurs in all cases.

In order to be convicted under this statute as this statute appears before this Court it requires a biased motive, a prejudice, a belief system opposing whites.

Unknown Speaker: That part of the burden of proof of the state is to show an animus towards the race of the victim?

Mr. Adelman: That's correct.

If you look at the Wisconsin Supreme Court, if you look at every single application to date of this crime.

It's after all, Justice Stevens, it's called a hate crime statute, and that's what it's directed at.

It punishes hate.

It punishes crimes which are committed which, with a certain mind set and certain animus which is in this particular case not just a motive for a crime but a generalizable belief system about a particular public matter.

It's a crude belief system, certainly, but it nevertheless is a viewpoint.

Unknown Speaker: Perhaps I'm wrong, counsel.

On A8 again of the Appendix it is true that the state court say without doubt the hate crime statute punishes bigoted thought, but it seems to me that that isn't all it punishes.

It punishes selection of a victim by reason of the victim's race.

That's all the statute says.

And I don't think this is necessarily inconsistent with that.

Mr. Adelman: Your Honor, the selection of the victim is part of the underlying crime.

All crimes involve a selection of a victim.

The operative words of this statute are not selection of the victim.

Because of As construed by the Wisconsin Supreme Court because of means biased motive.

And in addition all the evidence concerning this particular statute makes it clear that that's what is being talked about.

If you look at the legislative history, the sponsors basically said that the purpose of this law is to impose additional penalties because of, perpetrated because of someone's religious or social biases.

All of the applications of this law to date have been to situations involving a biased motive.

Unknown Speaker: I suppose that's simply because it's mostly bigots who select people because of their race.

That's just the way it happens to be, but that's not what the statute says.

Mr. Adelman: Well, Your Honor, even though the state may come up with a few marginal creative hypotheticals which would involve a hypothetical of someone who was committing hate crimes without hate, that's essentially what their hypothetical is, those would be the most remote and marginal applications of this law.

I know of no such application across the country so far.

And that's not what this statute is about.

This statute, contrary to these creative hypotheticals, is about biased crime or hate crime.

The--

Unknown Speaker: Mr. Adelman, may I just ask you a technical question?

It's about the Wisconsin Supreme Court's construction.

I've got page A7 in the petition for cert which, where the court's opinion is set out, and the court says there because the hate crime statute--

--Where about on the page, Justice Souter?

It's the top of the carry over paragraph, the last sentence in that paragraph.

It says because the hate crime statute punishes the defendant's biased thought as discussed below and thus encroaches on First Amendment rights, the burden is on the state to prove constitutionality.

Clearly the Wisconsin Supreme Court is saying that the statute covers biased thought.

Does the court ever get more explicit in saying that that is all it covers are biased action?

Does the court ever get more explicit in saying that that is all it punishes?

Mr. Adelman: --Your Honor, I think that the court clearly was not thinking of these various hypotheticals posed by the state--

Unknown Speaker: Well, that may be but I just want to stick at the moment to the specific question.

Does the court get more explicit later on in saying that it, that the statute does nothing more than this, covers nothing more than this?

Mr. Adelman: --I don't think the court says that explicitly, but I think it's clear that that's, that their interpretation is to bias.

I might also add on that point, Justice Souter, that the state itself in their cert petition on page 16 concedes that the statute is about prohibiting bias-motivated action.

Furthermore, when the state talks about such cases as Dawson, which have to do with the admissibility of biased motive and First Amendment protected activity, the state then concedes essentially that we're talking about a biased motive.

It's only when the state talks about the facial challenge that then they say well, it doesn't involve biased motive, but then when they talk about Dawson they say well, biased motive is okay.

So the state is really trying to have it both ways.

It's clear what this statute's about and it's clear that the overwhelming if not 100 percent of the applications will be to biased motive.

Unknown Speaker: Mr. Adelman, suppose you didn't have a statute and you just have a normal prosecution for a murder.

The defendant is convicted and the judge, a common law judge sentencing says I am going to give you a particularly harsh sentence because you are a person who believes in violence.

You are a particularly vicious and obnoxious person because of your belief in violence.

Now, judges have always done that throughout the history of the common law.

Isn't... what's the matter with believing in violence?

That's a belief system too.

People can go around believing in violence.

You can't punish them for that, can you?

But if they commit some other crime you can send them up for longer than you otherwise would because of their belief system.

We have always done that.

So what's so unusual about doing it in this statute?

Mr. Adelman: In Dawson this Court said that the First Amendment applied its sentence and that biased motive or belief may be considered as evidence of a content-neutral sentencing factor.

A court, whether it's a court or a legislature, they can't impose an additional penalty because the court or the legislature disapproves of the belief of the defendant.

If that belief is relevant to a content-neutral sentencing factor, such as the defendant being violent, future dangerousness, lack of remorse, the court may consider that as evidence.

And in Dawson this Court said that they can consider it as evidence only with the greatest caution.

So yes, traditional sentencing practice allows courts every day to take into consideration all kinds of things, including biased motive, but those must be related to traditional sentencing factors such as violence.

Unknown Speaker: Are you arguing that biased thought is an element of the offense?

Mr. Adelman: It's clear, Your Honor, that--

Unknown Speaker: And is it clear in this case that that element was proved beyond a reasonable doubt in this case?

Mr. Adelman: --Well, it's clear that the... yes, we do not dispute that.

Unknown Speaker: But... you think also the record really does show that this defendant had this kind of bias against whites?

Mr. Adelman: That's a more difficult question, Your Honor, and I think that brings up another problem--

Unknown Speaker: It seemed to me, very frankly, that if you thought that was an element of the offense you might well have argued a failure of proof.

Mr. Adelman: --Well, Your Honor, that might have been argued below and I think that brings up another problem with this statute, and that is the over-inclusivity.

If the 1992 amendments to the statute clarify the meaning of the original law, the biased motive is not even required to be 100 percent biased.

In fact under these, under this law you could have a 1 percent biased motive and 99 percent some other motive, a greed motive, and still be subject to the enhanced penalty.

The... I was talking about the content-neutral alternatives, and the real problem with this statute--

Unknown Speaker: Well, incidently, the Wisconsin court hasn't said that it doesn't have to be a substantial factor, does it?

This just hasn't been interpreted.

This is a statute that was amended after this case came up.

Mr. Adelman: --That's correct.

And it's clear that we don't know what the quantum of motive was required under this law, but under--

Unknown Speaker: So this issue is something not before us.

Mr. Adelman: --Well, I think, Your Honor, that the, that the 1992 amendments may well have clarified the meaning of the original law, and it's clear that the law now that's in effect in Wisconsin covers because of in whole or in part, which means you can have an unconscious amount of racism, the most minute percentage of disapproved or disfavored motive, and still be subject to this additional penalty.

It's clear what the state is doing here is that they were searching out to find bias wherever they could find it, even in minute qualities.

The statute also covers not just violent crimes but it covers every crime in the whole Wisconsin criminal code, including such minor offenses as mooring a water craft to the wrong pier.

That can be enhanced if there's a 1 percent racial bias.

Unknown Speaker: Did the Supreme Court of Wisconsin, Mr. Adelman, comment on the meaning of in whole or in part?

I mean, does it support your view that 1 percent would be sufficient?

Mr. Adelman: They didn't say.

They didn't say.

And the in whole or in part wasn't the law as it applied to, wasn't in the statute.

That was a subsequent amendment, Your Honor.

Unknown Speaker: What did the statute say at the time your client--

Mr. Adelman: Because of.

Unknown Speaker: --Because of.

Any indication why the legislature amended it to say in whole or in part?

Mr. Adelman: Well, I think that the only, I think it's clear because they wanted to get at even minute quantities of the disfavored motives.

It's clear that that's what they're trying to do essentially, and that's what's wrong with the statute.

Not only are there content-neutral alternatives which could get at these effects without implicating bias, and we have mentioned a couple of them, but the statute also is over-inclusive.

And what that makes clear is that there's an unspoken purpose to this law, one that the state does not say, and that's an improper and unconstitutional purpose, and that purpose is essentially to find little bits or big bits of prejudice wherever it is and then impose an enhancer.

This statute is about bigotry.

And however abhorrent and disgusting bigotry may be, it is nevertheless a viewpoint which is protected by the First Amendment.

Unknown Speaker: Is there any evidence in the record of the way the statute has been used by Wisconsin prosecutors?

I mean in fact are people who moor the boats at the wrong dock ever charged of having done so because of a bigoted motive?

Mr. Adelman: The evidence in the record suggests that this statute isn't used much at all in any particular situation, but it surely could be, Your Honor.

Prosecutors and law enforcement surely under this law have the discretion to apply it anywhere they want.

There's a huge scope for discretion here, and in fact that I think is another serious problem in this case.

But, as I was saying, the unspoken purpose of this law is essentially to identify certain disfavored prejudices and punish them wherever they find them.

The enhancer is not narrowly tailored.

It is also under-inclusive because there are certain situations where the same harms would occur if the state asserts other justifications for the statute.

For example women.

Women are not a protected category.

You get more time if you commit a crime against somebody because of their sexual orientation but not because of their gender.

Surely a gender-based crime would cause the same terror or harm that the state asserts as its reason for enacting this law.

Unknown Speaker: Our cases have said that the legislature can address evils one at a time, that it doesn't have to cover the whole waterfront, so to speak, in one statute.

Mr. Adelman: But this Court has said also that when under-inclusivity is based on content and viewpoint that makes the statute subject to strict scrutiny.

This statute is subject to strict scrutiny because it does punish thought.

Thought is protected by the First Amendment.

The content and viewpoint specificity of this law is not necessary.

The state--

Unknown Speaker: Well, maybe the Wisconsin legislature thought there weren't any misogynists in Wisconsin.

Mr. Adelman: --It's possible, but I--

Unknown Speaker: You don't believe so?

[Laughter]

Mr. Adelman: --The point is, Your Honor, the content and viewpoint specificity is not necessary.

A decision striking down this law is not a decision that says to Wisconsin you can't do this, you can't deal with the problem of biased crimes.

All it is is a decision saying do this the right way.

Address the particular harms.

Pass an enhancer if you will which addresses harms or addresses effects.

We have suggested several of them.

If the penalties are insufficient... I mean, after all, what does this enhancer do?

It just increases the judge's ability to give out penalties.

Well, if the penalties in the Wisconsin law are insufficient, a content-neutral way of solving the problem would just be to figure out those crimes where you need larger penalties, increase the total--

Unknown Speaker: Suppose, Mr. Adelman, suppose Wisconsin had a separate statute that said if you do this sort of thing because of race, if you assault another person on account of race you must have a, and they specify the minimum penalty which is just larger than the normal assault statute has in it.

I suppose you would attack that statute?

Mr. Adelman: --The statute can't be based on thought.

That's the problem with this statute.

Unknown Speaker: Well, but you would also say that the statute I just posited would be unconstitutional?

A separate statute saying if you assault anybody on account of race it's 10 years, whereas the regular assault statute is 5 years.

Mr. Adelman: If it was because of your views on race that would be unconstitutional.

Unknown Speaker: What do you do about section 242 of the Federal Criminal Code which says that if you deprive any person of a right, privilege, or immunity protected by the Constitution of the United States and you do it on account of color or race, you have committed a crime and you are punished for that?

Mr. Adelman: There are two answers to that, Your Honor.

One, 242 requires state action under color of state law.

When the state--

Unknown Speaker: So?

Nevertheless it punishes some person who is acting under color of state law for this conduct that he is, that he is doing on account of race.

And it's on account of race or color.

And it covers only the crime is, has to be motivated by race or color.

Mr. Adelman: --Your Honor, 242 is distinguishable because it serves a different interest.

What 242 does, it's a narrowly tailored statute which is addressed at specific kinds of interference with federally protected or federally guaranteed rights.

It serves to protect rights that the Federal Government--

Unknown Speaker: Maybe so, but it's, the thing that makes it a crime is that the conduct is engaged in because of race.

And why isn't that a criminalizing of bias?

Mr. Adelman: --Because the statute is not directed at bias.

It only implicates race to the extent necessary.

And incidentally, that statute if subjected to strict scrutiny would survive strict scrutiny because it's not directed at bigotry.

Unknown Speaker: Well, I would suppose that your supreme court would declare this statute unconstitutional.

It would just read it and say that this statute is, has to be aimed at bias.

Mr. Adelman: I'm sure they wouldn't, Your Honor, because in that case--

Unknown Speaker: Well, I don't know.

Mr. Adelman: --the bias, the motive, and the conduct are inextricable.

The problem with this enhancer law is that the conduct is already punished and basically what they have done is added a separate punishment which is only addressed.

It's not necessary to do it that way.

They could address the problem of biased crimes without punishing thought.

And that suggests that really what--

Unknown Speaker: On that basis I would think 242 would be even more suspect because it just isn't an enhancer.

The only reason there's any kind of a punishment at all is because of a bias, of race-motivated conduct.

Mr. Adelman: --No, Your Honor, that's not true.

It's because there's an interference with Federal rights, and the Federal Government has an obligation to protect people--

Unknown Speaker: Well, I know, but it doesn't, this statute doesn't cover all interferences... under this, this statute would not be violated by someone who interfered with somebody's federally constituted, protected rights for some reason besides race.

It just wouldn't be reached at all.

Mr. Adelman: --But the reason you need--

Unknown Speaker: We have a separate statute here criminalizing conduct motivated by race.

Mr. Adelman: --You need that because of in that statute to give meaning to the phrase interference with Federal rights.

If you didn't have a because of, that would be a too general law, almost as if, almost like the issue in Griffin v. Breckenridge where the court read in a kind of an animus to give specific intent to avoid the shoals of a Federal tort law.

So in a sense that proves our point, Your Honor, because there the bias is necessary.

It would pass strict scrutiny, as opposed to by contrast the enhancer law where the, having bias in the law is totally unnecessary and serves no purpose other than to punish the improper motives.

Unknown Speaker: What about treason and espionage laws which make certain acts unlawful if committed with the intent to give aid and comfort to the enemy?

I'm certainly entitled to wish the enemy well in a war that my country's engaged in.

I don't think I can be put in prison for hoping that my country loses.

But if I perform an act which otherwise would be lawful, but I do that act with the intention of helping the enemy--

Mr. Adelman: Intention is different than motive, Your Honor.

Unknown Speaker: --Intention is different from motive?

Mr. Adelman: Yes, intention affects--

Unknown Speaker: Okay, then strike it.

I do it with a motive of--

[Laughter]

--of helping the enemy.

Mr. Adelman: --Whatever you call it, in your hypothetical that's intent.

It affects the conduct.

The treason statute is addressed at conduct.

It's not, it doesn't punish you for being, for disliking--

Unknown Speaker: No, no, the conduct is turning over the information.

The conduct is simply an act.

Maybe it's bombing something, maybe it's disclosing secret information.

But the only thing that makes it treason is that I do it with the motive of giving aid and comfort to the enemy.

Mr. Adelman: --See, you could turn it over by accident, and that wouldn't be treason.

Unknown Speaker: That's right.

Mr. Adelman: That's why you need the intent in there.

And that's not motive, it's intent.

Because if it was an accident it wouldn't be any--

Unknown Speaker: Oh, no, but I... no, I can turn it over intentionally and I know I am giving it to this person.

It's fully intentional.

But unless my motive is to help the enemy it's not treason.

Mr. Adelman: --I believe that treason statutes don't punish, I think they punish the intent--

Unknown Speaker: I think you're wrong.

I don't see any difference between that and what's going on here.

Mr. Adelman: --Well, Your Honor, intent affects the what of conduct.

If it's reckless or if it's intentional it's different conduct than if it's accidental conduct.

I don't think the treason statute--

Unknown Speaker: I think treason statutes are directed against bad people who wish the country harm, and the same act performed by that person is made more serious than one that is performed by some other person.

Mr. Adelman: --Wisconsin's concern about biased crimes is well-intentioned.

It's tempting to sacrifice a part of the First Amendment in the name of an important problem such as racial harmony, but the First Amendment protects the thought we hate as well as the thought that we like.

It protects the viewpoints of even inarticulate people like Todd Mitchell as much as the viewpoints of the erudite.

More than anything minorities need an uncompromised First Amendment, for it is minorities more than anyone who are likely to think the thoughts which are offensive to the powers that be.

And any statute that gives the Government the power to punish thought is going to be used more against minorities than against anyone.

So in fact sometimes this case has been talked about as a conflict between interests of liberty and interests of equality.

It's not that at all.

The affirmance of this Wisconsin Supreme Court decision is a victory for the First Amendment, and it's also a victory for equality and for the rights of all of us to think what we want.

That's what this statute does.

Thank you.

Unknown Speaker: One question, Mr. Adelman.

Mr. Adelman: Yes, Justice Thomas.

Unknown Speaker: There were 10 individuals involved here?

Mr. Adelman: That's correct.

Unknown Speaker: Let's assume that five were told to attack a white person and five said they would attack a black person, for whatever reasons.

Now, the first five of course would be covered by the statute.

Would the second five not be covered?

Mr. Adelman: The second five... any kind of biased motive would be covered.

Unknown Speaker: The statute says because of race.

Mr. Adelman: Yes.

I think both would be covered.

Unknown Speaker: So where is the bias in the second five?

Mr. Adelman: The bias is a racial bias.

The, you can have a bias against whites or a bias against blacks.

Either way is a bias, Your Honor.

Either is a viewpoint, and that statute is content and viewpoint-specific.

If it punishes, if it's a statute that punishes content and viewpoint-specificity it's subject to strict scrutiny.

If the achievement, if that goal can be achieved in another way by a content-neutral alternative, then the state has an obligation to do it and the statute is unconstitutional.

Unknown Speaker: So you're assuming that there's intraracial bias simply because they decided to attack a black person also?

Mr. Adelman: The statute is directed at bias, racial bias.

I understand you said that, but my question is most of your argument seemed to depend, or at least your assessment of bias seems to depend on the interracial nature of the crime.

I am putting it in an intraracial context to at least isolate the notion, the existence or non existence of bias.

The statute does not refer to bias, so where is the bias on an intraracial basis?

In order to prove the crime on an intraracial bias under the construction by the Wisconsin Supreme Court the state would have to be shown that there was an intraracial bias.

If it was just an assault without a bias... and an intraracial bias is a hard hypothetical to imagine--

Unknown Speaker: So in all the cases that you are aware of the state actually had to prove that there was bias, not simply that this individual was chosen, the victim was chosen because of his or her race, for whatever reasons?

Mr. Adelman: --The Wisconsin Supreme Court said that because of meant biased motive.

This is a hate crime statute.

All of the applications of this statute have been to cases involving bias, and that's an element of the state's burden of proof.

Unknown Speaker: Thank you, Mr. Adelman.

Mr. Adelman: Thank you.

Unknown Speaker: General Doyle, you have 2 minutes remaining.

Rebuttal of James E. Doyle

Mr. Doyle: Thank you, Your Honor.

With respect to the questions about the Wisconsin Supreme Court and whether they went beyond statements about whether this just simply applies to bias and thought, I direct the Court's attention to footnote 13 in the Appendix and the petition for the writ at page 14, in which the court says while the statute as-written may extend to situations where the actor in fact is not biased, this does not save the statute.

So the Wisconsin Supreme Court at least to this instance did read the words of the statute and did recognize that the words of the statute extend to somebody who is not in fact biased.

Further, with respect to several of the questions, Justice Thomas' question at the end, let, I'd like the record to be clear in this case that there was no evidence put in at the trial court by the state other than the facts of the case themselves and the words about go get a white, are you all hyped up to get a white boy.

There was no evidence put in by the state about any underlying bias on the part of Mr. Mitchell.

To this day the state does not know whether Mr. Mitchell harbors biased thoughts or benign racial thoughts.

I suspect they are not good based on the crime itself, but there was no evidence on that.

And finally I'd like to mention just briefly the in whole or in part so that there's no confusion.

That's an amendment to the statute that occurred after this particular case came up.

The, Wisconsin generally defines because of as a substantial factor test.

Justice Bablitch in his dissent indicated that it was a substantial factor and a kind of a hybrid substantial factor but-for test.

And in fact the jury instruction that was not objected to that is part of the record said that if, that the reason for the selection of the victim, it said the reason for the selection of the victim had to be on account of the victim's race.

If there are not other questions--

Chief Justice Rehnquist: Thank you, General Doyle.

The case is submitted.