A matter of intent.

How often does it happen that the Supreme Court of the United states, the Department of Justice, the attorneys general of all fifty states, the Legal Defense and Education Fund of the National Association for the Advancement of Colored People, the National Gay and Lesbian Task Force, the American Civil Liberties Union, and the Anti-Defamation League of B'nai B'rith find themselves in full and cordial agreement with each other on a question of public policy?

Not very often--and a good thing, too. As The New Yorker magazine noted recently, such extraordinary unanimity, as manifested in the case called Wisconsin v. Mitchell, ought to set off an alarm that something evil is afoot. In this case, the evil is a so-called penalty enhancer--a provision in the laws of Wisconsin that imposes additional criminal sanctions for "hate crimes."

A hate crime is defined as one in which the perpetrator commits an offense because of the victim's "race, religion, color, disability, sexual orientation, national origin, or ancestry."

In the case that went to the Supreme Court, a young black man, Todd Mitch had been standing on a street corner in Kenosha, Wisconsin, discussing the film Mississippi Burning with a group of friends. When a white fourteen-year-old happened by, Mitchell said, "There goes a white boy. Go get him." Mitchell's friends attacked the boy and beat him unconscious. Mitchell was arrested, tried, convicted, and sentenced to four years in prison--two years for aggravated battery and two years more for committing a hate crime. (The law actually authorized a five-year penalty enhancer.)

Mitchell's lawyers argued that he had been given additional punishment for his thoughts and words, in violation of his First Amendment rights. They cited a ruling on a similar statute by Ohio's highest court:

"The question before us is not whether the government can regulate conduct itself.... The issue is whether the government can punish the conduct more severely based on the thought that motivates the behavior....

"By enacting [the hate-crimes law], the state has infringed on the basic liberties of thought and speech. Once the proscribed act is committed, the government criminalizes the underlying thought by enhancing the penalty based on viewpoint. If the legislature can enhance a penalty for crimes committed |by reason of' racial bigotry, why not |by reason of' opposition to abortion, war, the elderly (or any other political or moral viewpoint)?"

The Supreme Court thought otherwise. In a unanimous opinion by Chief Justice William Rehnquist, it upheld Mitchell's sentence and the constitutionality of Wisconsin's hate-crimes law. Similar statutes have been enacted by twenty-six other states and the District of Columbia, and still more are likely to follow suit now that the highest tribunal has conferred its blessings. A Federal hate-crimes law is also in the works.

Chief Justice Rehnquist wrote that the Wisconsin hate-crimes law "is aimed at conduct unprotected by the First Amendment." He offered the rationale that crimes motivated by bigotry are "thought to inflict greater individual and societal harm," including "emotional injury." He treated the First Amendment concern with indifference verging on contempt.

I suspect that some of the enthusiastic supporters of hate-crime laws haven't bothered to figure out that the penalty enhancer is much more likely to be invoked against embittered minorities (as it already has been in Wisconsin v. Mitchell) than against oppressive majorities. That's the standard procedure in U.S. law enforcement.

What troubles me even more is the possibility--the likelihood--that hate-crimes statutes will send prosecutors on unlimited and intrusive searches for "motivation." How does one establish a defendant's hateful intent? By scrutinizing the books he or she reads, the comments he or she makes, the company he or she keeps? When punishment can be based on motive--or mere speculation about motive--rather than deed, abuses are sure to occur.

What would induce the entire Supreme Court, not to mention the worthy organizations cited above, to embrace such a dangerous doctrine? My hunch is that they all leaped at a cheap way to prove what good folk they are, opposed to wickedness and committed to virtue. Hate-crime laws are the statutory equivalent of the red ribbons ubiquitous at celebrity affairs as emblems of fashionable concern about AIDS.

But there I go speculating about motives.