High Court OKs Stiffer Penalty for Hate Crimes : Jurisprudence: Civil rights and religious leaders breathe a sigh of relief at the 9-0 ruling.

By DAVID G. SAVAGE

June 12, 1993 12 AM PT

TIMES STAFF WRITER

WASHINGTON — The Supreme Court gave state and federal governments Friday the power to punish hate crimes harshly, ruling that criminals can be given longer prison terms for physical assaults motivated by the race, religion or sexual orientation of victims.

The 9-0 ruling upholds laws in 26 states, including California, that permit judges to impose stiffer sentences on those whose crimes grow out of their bias.

Civil rights and religious leaders breathed a sigh of relief at the ruling. A series of laws were enacted in the last decade to combat what was seen as a wave of hate crimes, but the constitutionality of those measures stood in some doubt.

Last year, the high court struck down a St. Paul, Minn., law that made it a crime to burn a cross or display a Nazi swastika, and its majority opinion said that expressions of racial and religious hatred are protected from punishment by the First Amendment.

Based on that opinion, supreme courts in Wisconsin and Ohio ruled their states’ hate-crime laws invalid because they imposed punishment on a “thought crime” or a racist utterance. Typically, prosecutors invoke hate-crime laws if they have evidence that a defendant was motivated by racism, homophobia or anti-Semitism.

But speaking for the court, Chief Justice William H. Rehnquist drew a clear line between laws that punish expression primarily and those that punish conduct.

A law that makes it a crime to burn a cross or an American flag is “explicitly directed at expression,” Rehnquist said, and is therefore invalid. By contrast, a law imposing extra punishment for an assault “is aimed at conduct.”

“A physical assault is not by any stretch of the imagination expressive conduct protected by the First Amendment,” the chief justice said.

The Anti-Defamation League, which had urged states to adopt hate-crime laws, hailed Friday’s ruling as “an important milestone in the struggle to combat criminal conduct motivated by bigotry.”

“We have always believed that the perpetrators of hate crimes deserve tougher sentences,” said ADL national chairman Melvin Salberg. “We hope the message the court has sent today will resonate among would-be perpetrators and will deter future hate crimes.”

Orange County experiences its share of hate crimes each year. Most recently, a San Clemente high school student has been charged with attempted murder and committing a hate crime for allegedly beating a man last January he believed to be gay.

In 1992, there were 188 hate crimes and related incidents reported in the county. That figure marked a 50% increase over the previous year.

The California law, known as a “felony enhancement,” allows a stiffer sentence for a crime “committed against the person or property of another . . . because of the other person’s race, color, religion, ancestry, national origin, disability, gender or sexual orientation.”

Civil rights lawyers in Los Angeles and San Francisco said that the law has not been used frequently. It has been employed most often in so-called “gay bashing” cases in the San Francisco Bay Area, including one incident where a vicious assault against a gay man was captured on videotape.

“Usually, these are not easy cases to prove,” said Angelo N. Ancheta, an attorney for the Asian Pacific American Legal Center of Southern California. “The best evidence is a statement from the defendant.”

In the case before the Supreme Court, prosecutors had a clear statement from the defendant, a black man accused of assaulting a white youth.

On the evening of Oct. 7, 1989, a group of young black men had gathered on a street in Kenosha, Wis. They had just watched a tape of the movie “Mississippi Burning,” in which a white man beat a black youth who was praying.

“Do you all feel hyped up to move on some white people?” 19-year-old Todd Mitchell asked of his friends.

Soon after, a 14-year-old white youth came walking down the other side of the street. “There goes a white boy,” Mitchell said. “Go get him.”

At that, the gang attacked the white youth and beat him severely. He spent four days in a coma.

Mitchell was convicted of aggravated assault, which under Wisconsin law carried a maximum two-year prison sentence. But prosecutors invoked state hate-crime law, which permitted a higher sentence against someone who “intentionally selects” his victim because of his race, religion, disability, national origin or sexual orientation. The judge sentenced Mitchell to four years in prison.

Last year, the Wisconsin Supreme Court heard Mitchell’s appeal and rejected the extra two-year sentence. It ruled that the hate-crime law “threatens to chill free speech” because it imposes a punishment for comments such as Mitchell’s.

The justices agreed to hear the state’s appeal of the case (Wisconsin vs. Mitchell, 92-515) and, without apparent difficulty, unanimously reversed the state court decision.

Rehnquist noted that all manner of laws, including the federal civil rights statutes, rely on the motive of an actor.

For example, if an employer fires a subordinate because he does not like his personality, he acts within his rights. However, if he fires him because of his race, he violates federal civil rights laws. A racist comment by the employer could be used against him to show that the firing was motivated by bias.

The chief justice also noted that in 1947, the court upheld a conviction for treason of a German-American who had made statements showing devotion to Adolf Hitler. No one suggested that such comments are entirely protected from punishment by the First Amendment, he said.

* CLINTON MEETS BREYER: Selection of judge for high court appears imminent. A24