1557
(3 votes, average 5.00 out of 5)
Written by Jamakaya
Sep 22, 2010
Two recent criminal cases in Milwaukee renewed debate about Wisconsin’s hate crime statute.
One case involved the murder of Chanel Larkin, a transgender woman, whose assailant was charged with homicide but not with the hate crime penalty enhancer. The other was the case of Robert Anthony Malczewski, charged with reckless endangerment along with the hate crime penalty enhancer after admitting to police that he used a pellet gun to shoot at people he perceived as Mexicans.
From its passage in 1989, Wisconsin’s hate crime statute has been misreported and misunderstood by the mainstream media and by talk show hosts and audiences who seem to think the law is used only against white people.
It is also sometimes ignored by those entrusted to enforce it. Milwaukee police are not always aware of and do not always take note of evidence indicating a possible hate crime has been committed. Prosecutors cannot add the hate crime penalty enhancer if there is a lack of evidence. They are sometimes reluctant to do so in cases where the defendant is charged with serious felonies that could result in life or near-life sentences, because the extra penalty charge is deemed superfluous and adds an extra burden of proof.
For the record, the state statute (939.645) does NOT create a new category called “hate crime” but governs penalties for already existing crimes. It says fines and jail time can be increased if a person is convicted of a crime in which he or she “intentionally selects” the person or property “in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor’s belief or perception was correct.”
Although the statute lists categories of victims, it is neutral in application. People are often surprised to learn that in the state’s most famous case, a black man named Todd Mitchell was convicted of aggravated battery with the hate crime enhancer for attacking a teenager in Kenosha in 1989. Racial slurs against the white victim preceded the attack.
Civil rights laws are often misperceived in the same way. The state law that forbids discrimination in housing, employment and public accommodations, for example, does not just protect gay people or black people. These are not “special rights.” Because categories like “race” and “sexual orientation” are all-inclusive, these laws protect everyone. That’s why a lesbian was once sued by a straight woman for housing discrimination when the straight woman claimed she was a victim of sexual orientation bias.
The hate crime penalty statute was criticized by some as an infringement of civil liberties for penalizing speech or thought. In an appeal related to the Todd Mitchell case, Wisconsin’s Supreme Court found the law unconstitutional in 1992.
However, the Mitchell case went all the way to the U.S. Supreme Court and, in 1993, the high court unanimously upheld the law. Chief Justice William Rehnquist ruled that judges have always had wide discretion in weighing various factors, especially motivation, in determining criminal penalties, and that the legislature was within its authority to mandate greater penalties for crimes motivated by hatred.
Rehnquist quoted the legal scholar Blackstone, whose work influenced American law: “It is but reasonable that among crimes of different natures those should be most severely punished which are the most destructive of the public safety and happiness.”
