"Hate crime" prosecution for flushing Koran down a toilet

[Howard Schweber]

----- 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 
circumstances.  

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.

Howard Schweber
Dept. of Poli. Sci.
UW-Madison