30 years after landmark Supreme Court hate crime case, prevention must be our focus

Thirty years ago today, the U.S. Supreme Court heard oral arguments in Wisconsin v. Mitchell, the landmark case that upheld the constitutionality of hate crime penalty enhancement laws.

The case involved a violent racial assault in a Kenosha apartment complex by a group of young Black men and boys – led by Todd Mitchell – against a white teen walking by on his way home. The group was agitated, having just watched the movie Mississippi Burning, which includes several emotional scenes of brutal, racist violence during the civil rights movement. Mitchell inspired the group to attack the teenager, who was so severely beaten that he remained in a coma for four days.

A jury convicted Mitchell of aggravated battery and a violation of Wisconsin’s hate crime law, which allows for an enhanced penalty when the perpetrator “intentionally selects” the victim because of “the race, religion, color, disability, sexual orientation, national origin or ancestry of that person.” Mitchell challenged the law, contending that it violated his First Amendment rights – and the Wisconsin Supreme Court agreed.

On appeal to the U.S. Supreme Court, defense attorneys and some constitutional scholars supported Mitchell’s position. On Wisconsin’s side, there was a much larger group of supporters – the federal government, members of Congress, several law enforcement agencies and many of the most prominent civil rights organizations, including the Southern Poverty Law Center, the Anti-Defamation League, the NAACP Legal Defense and Educational Fund, the National Gay and Lesbian Task Force and the ACLU. The other 49 states and the District of Columbia submitted one remarkable amicus brief in support of Wisconsin.

In June 1993, the Supreme Court upheld the Wisconsin law with the best kind of decision: a short, unanimous opinion written by Chief Justice William Rehnquist. He accepted the Wisconsin Legislature’s decision to punish this criminal activity more severely because of its significant societal harm.

The decisive holding in Wisconsin v. Mitchell essentially ended debate over the constitutionality of federal or state hate crime penalty enhancement laws. Today, the federal government as well as 46 states and the District of Columbia have such laws.

But clearly, it is much better to prevent these crimes from occurring in the first place. To do that, we need more focus and funding for anti-racism education and community-based democracy building initiatives. The SPLC’s Learning for Justice program and the trailblazing work the SPLC is doing with American University’s Polarization and Extremism Research and Innovation Lab – to empower adults to help steer young people away from violent extremism – provide valuable models and resources.

And we need better data.

Data gaps

Data drives policy. We cannot address a problem unless we measure it accurately. The Hate Crime Statistics Act of 1990 (HCSA) was designed to do that. The law requires the FBI to compile hate crime data from the more than 18,000 federal, state, local, university and tribal law enforcement authorities and to publish an annual report based on that data.

Because of its national scope, the HCSA report has been the most important national snapshot of hate violence in the U.S. Moreover, it has sparked many improvements in the way police departments across the country address hate crimes, because in order to report hate crime data, agencies must also train their officers on how to identify and respond to bias-motivated violence.

However, inconsistent reporting and significant gaps by large jurisdictions have always plagued the report. The 2021 HCSA report, released in December 2022, was so flawed that any comparison with previous years was meaningless. The year 2021 was the first time the FBI required every agency to report all crime, including hate crimes, through its National Incident-Based Reporting System.

Although the FBI had provided transition funding and technical assistance, many jurisdictions were either unable or unwilling to report through the new system, resulting in dramatically incomplete reporting. Ninety million fewer Americans were covered than in the previous year. And 3,300 fewer agencies participated, including agencies in New York City, Chicago and, essentially, the entire states of Florida and California.

In a very welcome move, the FBI decided to augment the most recent report by permitting agencies to report data they had collected under the old system. The FBI’s supplemental 2021 HCSA report, released in mid-March, added about 3,600 hate crimes to the earlier data – for a total of 10,840 incidents, the highest number ever recorded and a 31% increase from 2020.

The supplemental report also found that:

• As always, race-based crimes were the most numerous – 6,643. It was the most ever reported and a deeply disturbing 27% increase over 2020. And, as always, a significant plurality of these crimes were committed against Black people. There were also 789 reported attacks against members of the Asian American and Pacific Islander community – a 168% increase, by far the highest figures ever recorded. Additionally, hate crimes against Latinx people increased to 698, a 32% increase and the highest number ever reported.
• Sexual orientation was the second-highest category, a 54% increase over 2020. Hate crimes committed on the basis of gender identity increased 29% (after a 34% increase from 2019 to 2020) and, by far, the highest reported since the FBI began collecting this data in 2013.
• Religion-based crimes were the third-most numerous, increasing 28% over 2020, with crimes directed against Jewish people and Jewish institutions the most numerous, increasing 20% over 2020.

Even with the supplemental data, however, the report gives an incomplete picture of the problem.

The FBI received hate crime reports from only 14,859 law enforcement agencies – out of 18,812 across the country. And only 2,980 – less than 20% of all agencies – reported one or more hate crimes. All the others affirmatively reported zero.

Solutions

The U.S. needs new tactics and new tools to address the increase in hate violence plaguing our communities. The SPLC is calling for several changes.

First, we must improve the reporting of hate crimes so that policymakers and law enforcement will have a better understanding of the problem. To do this, the federal government should require local agencies to collect and report all hate crimes. Until legislation requiring reporting can be enacted, the government should condition federal funds for law enforcement agencies on credible hate crime reporting or meaningful community hate crime prevention and awareness initiatives.

States and the federal government must also enforce hate crime laws. The Biden administration should continue its vigorous enforcement under the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 and work with stakeholders to implement the COVID-19 Hate Crimes Act – including creating state hate crime hotlines housed in non-law enforcement agencies.

Enforcement is vitally important, but the ultimate goal is to prevent hate crimes. The White House must follow through on the wide array of very welcome government initiatives and public-private partnerships against hate and extremism announced last September at the United We Stand Summit.

To help prevent hate crime, we must teach truth to children and young people. As states enact laws restricting inclusive education, much more needs to be done to teach young people unvarnished facts about American history – both good and bad – so that we can learn lessons from the past to shape a better future.

Just as important, we must promote online safety and hold tech and social media companies accountable for their role in spreading extremist disinformation and indoctrinating young people into racist and other hateful ideologies. Tech companies should create and enforce policies and terms of service to ensure that social media networks, payment service providers and other internet-based services do not provide platforms where hateful activities and extremism can thrive.

Finally, it is impossible to overstate the importance of elected officials, business leaders and community officials using their public platforms to condemn hate crimes, threats to historically Black colleges and universities, as well as vandalism and violence against houses of worship and other minority institutions.

Effectively addressing hate violence in our country will require a long-term commitment to anti-racism education and outreach. All of us must do our part.

Photos at top: The federal government, 46 states and the District of Columbia have hate crime penalty enhancement laws, such as that upheld by the U.S. Supreme Court 30 years ago in Wisconsin v. Mitchell. But inconsistent reporting of hate crime data hinders efforts to better understand bias-motivated violence and how to combat it. (Credit: Filippo Bacci/Getty Images)