- Wisconsin v Mitchell- A group of black men and boys, including D, gathered outside an apartment complex where they were discussing a scene from the movie Mississippi burning. D then asked, “do you feel all hyped to move on some white people?” Shortly after, a young white boy was on the other side of the street. As the group walked by, D stated “you all want to f**k somebody up? There goes a white boy; go get him.” D then counted to 3 and pointed in the boy’s direction. The group ran to the boy, beat him severely and stole his sneakers.
- “The constitution does not erect a per se barrier to the admission of evidence concerning one’s beliefs and associations at sentencing simply b/c those beliefs and associations are protected by the 1st Amendment,
- There is no question that they are guilty of assault but the legal question is whether or not the sentence can be enhanced b/c the ∆ intentionally selected V b/c of race…
- This is not an Apprendi problem b/c jury found relevant facts…
- Mitchell complains that this is violating his 1st Amend right
- Punishing his racist thoughts
- Ct says that this is okay b/c racism was motivation for a crime that was actually committed
- It changes the crime
- Ct says that there is a real harm…
- emotional harm on the V (V feels bad),
- Is this a sufficient reason to treat this as a harm???
- If Frantz feels bad about consensual gay sex she is out of luck then how is this different???
- No one says it is a problem that rape Vs feel bad b/c they were raped… the rapist doesn’t have a heightened sentence b/c V feels bad
- Should rape be treated as a hate crime???
- McKinnon argues that rape is a war crime…
- Selectivity of black person doesn’t take away from the fact that it’s a hate crime
- This is not a regulation of speech or thought
- If V feels bad b/c he doesn’t like ∆s thinking then that is off the table, V can feel bad but not offended or morally outraged… (hardcore ACLU view)
- Ignore Vs feelings if they are dependent on disagreement w/ views
- provoked retaliatory crimes (causes more crime),
- by entering into hate crime you have sparked a powerful societal disagreement
- does this work for Lawrence
- it is different b/c you are already in t he realm of the criminal??? Not entirely true… you can separate out moral component…
- are all of these things artifacts of the morality of an action
- community unrest
- It is clearly off limits to punish bigoted thought
- What does Posner say???
- They might be more dangerous b/c there are more potential Vs
- Members of a particular group are less likely to report crime or receive effective protection
- If it gets easier to attack an unpopular group you might get away w/ it so we should increase your punishment
- Psychological harm that make V fear future attacks
- Why is he skeptical that this is what’s going on???
- B/c it should be hate crime to murder prostitutes, which it isn’t we choose which groups to protect which brings in an element of politics
- Thus people are being punished for what they think… it is politically motivated… which is off limits unless it is truly based on some harm, which is not what is happening…
- Assumes that we are being disingenuous in our punishing of hate crimes which is wrong…
- Should motivation be looked at as relevant????
- What does Kahan think???
- The only reason to punish hate crimes is expressive, b/c they express the devaluation of groups
- It is effectively punishing the attitude of being a racist
- Posner comes to same conclusion but thinks end result is terrible…
- Could Kahan be right???
- The reason racism is wrong is b/c we think it is immoral
- The reason homosexuality is wrong is b/c it is immoral… seems like the same argument
- Once you allow one you must allow all…
- It may be that hate crimes are themselves morally based….
- Depends on what morals are being talked about and how they are applied
- Morals leg tends to be so high-charged politically and emotionally
- It is not guaranteed that the leg passed will have the desired effect
- In England it legalized gay sex but still prohibited public acts, age of consent was higher, etc. the basics were made legal
- The effect was that prosecutions for people tripled… the public and police outcry against leg was so great that whenever public behavior was seen people were prosecuted
- There could have been greater awareness of what was illegal
- This is often true for morals legislation
- It may be society has idea of what it will or wont tolerate…
- Three things that could be going on…
- (1) this is not punishing an idea
- (2) this is punishing an idea and it is fine
- (3) this is punishing an idea and it is not fine
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