High Court to Rule on 'Hate Crime' Laws : Law: The decision will determine whether states can impose harsher punishment for bias-motivated offenses.

By DAVID G. SAVAGE

Dec. 15, 1992 12 AM PT

TIMES STAFF WRITER

WASHINGTON — With the fate of “hate crime” laws hanging in the balance, the Supreme Court announced Monday that it will rule on whether states can impose harsher punishments on criminals who intentionally select their victims because of their race, religion, national origin or sexual orientation.

The ruling, due by July, is likely to determine the constitutionality of laws in 26 states, including California, that were enacted to halt a wave of highly publicized attacks on blacks, gays and Jews.

Typically, those laws allow judges to sentence a criminal to a longer prison term if a crime was motivated by hate and bias toward a class of people.

In June, however, the high court cast doubt on many of these laws with a broadly worded opinion that struck down a St. Paul, Minn., law against cross-burning.

Justice Antonin Scalia, writing for a 5-4 majority, said the First Amendment prohibits the government from a “selective limitation upon speech.” Just as officials may not impose punishments on those who say things that especially offend Republicans or Democrats, for example, they also may not impose fines or jail terms on those who communicate “messages of bias-motivated hatred,” Scalia wrote.

This decision swept aside laws that made it a crime to display a Nazi swastika or burn a cross. But the court left unresolved whether states can impose extra jail terms on those whose crimes--assault, for instance--reflect “bias-motivated hatred.”

That issue will be decided in a case that arose when a young black male urged a group of his friends to attack and beat a white teen-ager on a street in Kenosha, Wis.

On Oct. 7, 1989, Todd Mitchell, 19, joined his friends to discuss a scene from the movie “Mississippi Burning,” which showed a white man beating a young black boy who was praying. “Do you all feel hyped up to move on some white people?” Mitchell asked the group.

A short time later, Gregory Riddick, a 14-year-old white male, was walking down the far side of the street. “You all want to (beat) somebody up? There goes a white boy. Go get him,” Mitchell said.

The gang, including Mitchell, attacked Riddick, knocked him to the ground and beat him unconscious. He was hospitalized in a coma and suffered permanent brain damage.

A jury later convicted Mitchell of aggravated battery, which carries a maximum two-year prison term. The Wisconsin hate crimes law permits the judge to increase that punishment if the criminal “intentionally selects” his victim “because of the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.” Invoking that statute, the judge sentenced Mitchell to four years in prison.

Last summer, however, the Wisconsin Supreme Court struck down the hate crimes statute and ruled that Mitchell was being unconstitutionally punished for an “offensive thought.”

Although Mitchell can be imprisoned for his criminal act, he cannot be held longer because of the words that led up to it, the state court said.

The attorney generals from 31 states had joined Wisconsin prosecutors in urging the justices to review that ruling. On Monday, the court announced that it would hear the case (Wisconsin vs. Mitchell, 92-515).

State officials say Mitchell was being punished for “discriminatory behavior,” not for his words and thoughts. They note that a person who murders the President or a police officer can be punished more harshly than a person who murders his next-door neighbor.

If the law allows a harsher punishment for the person who “intentionally selects” the President as his victim, they argue, why not allow harsher punishment for those who “intentionally select” their victims because of their race, religion or sexual orientation?

Oral arguments in the case likely will be scheduled for March. The outcome probably depends on the four justices who signed Scalia’s broad opinion in the cross-burning case: William H. Rehnquist, Anthony M. Kennedy, David H. Souter and Clarence Thomas. Four other justices disputed Scalia’s view and indicated that they would uphold a well-crafted hate crimes law.

Like Wisconsin, California has a law that permits longer prison terms if a “crime is committed against the person . . . because of the other person’s race, color, religion, ancestry, national origin, disability, gender or sexual orientation.”

Civil rights lawyers say the statute has been used most often in the San Francisco area to punish “gay bashing.”

“Some DAs (district attorneys) have been reluctant to use the laws because these cases are hard to prove,” said Angelo Ancheta, an attorney for the Asian Pacific Legal Center in Los Angeles. “You almost need a statement from the defendant.”

One Santa Clara County resident succeeded in capturing on videotape an attack on him by his neighbor, complete with comments about his homosexuality. But several California appellate courts are now considering challenges to the state’s law based on Scalia’s opinion in the St. Paul case.

In other actions, the court:

--Ruled that civil rights lawyers who win a symbolic $1 for their plaintiffs are not entitled to have their fees paid. While the plaintiff was the “prevailing party” in the suit, “the only reasonable fee” in such a case “is no fee at all,” Thomas wrote in the case (Farrar vs. Hobby, 91-990).

--Made it easier to recover property that has been seized by the government (Republic National Bank vs. U.S., 91-767). A federal appeals court had ruled that a Florida bank may not seek to recover an $800,000 mortgage on a crack house that had been seized by U.S. officials and sold. But the justices revived the bank’s lawsuit.