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Wisconsin's Hate Crime
Penalty Enhancement Statute

Background on Wisconsin's Hate Crime Statute

Wisconsin adopted the first comprehensive hate crime statute in the nation in 1988. When it was challenged in court on First Amendment grounds, it was ultimately upheld on June 11, 1993 by a unanimous decision of the US Supreme Court in the case Wisconsin v. Todd Mitchell. The case was argued before the court by Governor Jim Doyle, who was State Attorney General at the time. Since that legal vindication, the Wisconsin statute has become a model for hate crime laws in many other states.

Despite its popular name, the Wisconsin statute (§939.645) does not create a new category of criminal offense; suspects are not charged with a "hate crime." Instead, the statute allows for the addition of a penalty "enhancement" upon conviction of established criminal charges like assault, vandalism, homicide, etc. If prosecutors can prove beyond a reasonable doubt that the offense was motivated, in whole or in part, by bias based on the actual or perceived race, religion, color, sexual orientation, disability, or national origin or ancestry of the victim, the perpetrator, upon conviction, can be given a sentence — jail time or a fine — above that prescribed by law for the particular offense. (The range of penalty enhancements is detailed in the statute.)

In upholding the law, the Supreme Court dismissed the claim that the statute infringed on the free speech and expression rights of the accused, a concern of many civil libertarians. The First Amendment, it noted,

"does not prohibit the evidentiary use of speech to establish the elements of a crime or to prove motive or intent. Evidence of a defendant's previous declarations or statements is commonly admitted in criminal trials subject to evidentiary rules dealing with relevancy, reliability, and the like."

In addition, Chief Justice William Rehnquist acknowledged the State of Wisconsin's argument that bias-motivated crimes are "thought to inflict greater individual and societal harm" and are "more likely to provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest." He wrote,

"As Blackstone said long ago, ‘it is but reasonable that among crimes of different natures those should be most severely punished, which are the most destructive of the public safety and happiness.'"


§939.645. Wisconsin Statutes
Penalty; crimes committed against certain people or property.

(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):

(a) Commits a crime under chs. 939 to 948.

(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor's belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor's belief or perception was correct.

(2)

(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum term of imprisonment is one year in the county jail.

(b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum term of imprisonment is 2 years.

(c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.

(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1).

(4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person's perception or belief regarding another's race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.


History:1987 a. 348; 1991 a. 291; 2001 a. 109.

When two penalty enhancers are applicable to the same crime, the length of the second penalty enhancer is based on the maximum term for the base crime as extended by the first penalty enhancer. State v. Quiroz, 2002 WI App 52, 251 Wis. 2d 245, 641 N.W.2d 715.

The "hate crimes" law, s. 939.645, does not unconstitutionally infringe upon free speech. State v. Mitchell, 508 U.S. 476, 124 L. Ed. 2d 436 (1993); 178 Wis. 2d 597, 504 N.W.2d 610 (1993).

Hate Crimes: New Limits on the Scope of the 1st Amendment. Resler. 77 MLR 415 (1993).

Talking about Hate Speech: A Rhetorical Analysis of American and Canadian Regulation of Hate Speech. Moran. 1994 WLR 1425.

Hate Crimes. Kassel. Wis. Law. Oct. 1992.



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