Targeting Conduct: A Constitutional Method of Penalizing Hate Crimes

Forty-three states have enacted hate-crime statutes. These laws generally fall into one of two classes, either hate-speech or penalty-enhancement statutes. The former has sought to control virulent expression by punishing the utterance or display of words or symbols that the user knows will arouse anger in others on the basis of race, color, religion, gender, or some other immutable characteristic. The United States Supreme Court examined an ordinance of this type in R.A.V. v. City of St. Paul and found that the law infringed on the First Amendment right to free speech. Penalty enhancement statutes vary slightly among states, but they generally allow for longer sentences and higher fines when specified crimes are committed because of the victim\u27s race. In State v. Mitchell, the Wisconsin Supreme Court held that the State\u27s penalty enhancement statute violated the First Amendment right to free speech. The United States Supreme Court has granted certiorari in this case. This Note will analyze the U.S. Supreme Court\u27s holding in R.A.V. and the state court\u27s holding in Mitchell. This Note concludes that the Mitchell rationale is flawed, and offers a sample penalty enhancement statute that, in conformity with R.A.V., should permit states to punish hate crimes