"Hate crime" prosecution for flushing Koran down a toilet
hhschweber at facstaff.wisc.edu
Sun Jul 29 11:17:00 PDT 2007
----- Original Message -----
From: "Rosenthal, Lawrence" <rosentha at chapman.edu>
Date: Sunday, July 29, 2007 1:04 pm
Subject: RE: "Hate crime" prosecution for flushing Koran down a toilet
To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>, CONLAWPROF at lists.ucla.edu
. . . But Wisconsin v. MItchell is clear that when
> enhancement is based on motive, there is no First Amendment
> protection, since the legislature is free to conclude that certain
> motives warrant an extra measure of punishment or deterrence. Surely
> taunting fellow students based on their religious preference, in our
> society, qualifies as a circumstance in which the legislature could
> think additional punishment or deterrence is warranted.
I think Prof. Rosenthal is right. The question of directed-ness comes up more clearly in a
Virginia v. Black situation, but that case is not apposite because there is no historical
context that defines dropping a Koran into a toilet as a threat of violence.
My problem with the application of Mitchell is a different one. It seems to me that there
should be a difference between an adjustment to the severity of punishment for a crime,
and altering the status of a wrongful act from infraction to misdemeanor to crime. Can
painting graffiti on a wall go from a misdemeanor to a class A felony based on its content?
To be sure, the categories of "misdemeanor" "class B felony," etc. are creations of legal
artifice, but so is the sentence enhancement. I submit that there is a reasonable argument
on First Amendment grounds that while a legislature can increase the penalty for a hate
crime based on its likely consequences for the community -- the assumption in Mitchell
being that violent crimes motivated by racial prejudice are more destructive than violent
crimes motivated by other characteristics -- we are in a different territory where legislation
makes an act a crime where it would otherwise merely be a rule violation.
There is also the question of selective enforcement. It is one thing to impose a more severe
punishment when a crime is motivated by a desire to taunt fellow students, but it would be
a different question if the underlying offense were never prosecuted *at all* in any other
If the legislature wants to make "taunting on grounds of religious affiliation" a separate
crime they can, and then worry about the R.A.V. problems (although the exceptions built
into that test would arguably cover the case). But to use a hate crime enhancement
provision to criminalize an otherwise non-criminal act seems to me to be going too far.
Dept. of Poli. Sci.
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