By nearly all accounts, the alleged actions of University of Wisconsin freshmen Benjamin Chamberlain and Michael Riha Dec. 21 were reprehensible and morally offensive.

To some, however, the criminal repercussion these students face — up to three years in prison each — is not proportionate to their alleged actions and is the result of an unconstitutional law that punishes people for their thoughts.

Because Chamberlain, Riha and their two out-of-state friends allegedly chose their victim because he was gay, the charges were upgraded from misdemeanors to felonies under Wisconsin's hate crime penalty enhancer.

"When you look at it on face value, these are not prison cases," Bill Ginsberg, Riha's attorney, said. "Turning [this] into a felony I don't think is appropriate."

Although Ginsberg said he is not totally opposed to Wisconsin's hate crime penalty enhancer, in his judgment the law should not be used in his client's "unique" set of facts.

According to a police report, Chamberlain, Riha and two of Riha's high school friends — Purdue University freshman Kevin Cochacki and Auburn University freshman Caleb Moore — ripped an LGBT poster off the door of an LGBT liaison in Ogg Hall and then threatened to kill the student both verbally and in writing.

The only physical contact referenced in the report was not part of the criminal charges and does not appear to be malicious in nature.

"I just have a personal opinion," Ginsberg said. "Legally, no matter how you cut it, tearing a poster off a wall … doesn't turn into a felony based upon bigotry."

According to UW political science professor Donald Downs, Ginsberg's displeasure with the charges is not unwarranted. In Downs' view, criminal defendants should never face additional charges based upon the minority status of their victims.

"When a person's a target of aggression or violence, that person needs to be protected by the criminal law regardless of the reasons for the violence," Downs said. "Special hate crime legislation is the wrong way to go about dealing with these things."

Particularly concerning to many hate crime law detractors are the First Amendment ramifications of the penalty enhancers. If one values free speech, they argue, he or she should be punished based on the crime itself rather than the underlying thought or hatred behind the act.

Such an aversion to hate crime legislation seems to be a minority view, however, as hate crime penalty enhancers are not unique to Wisconsin. A similar provision exists in 44 other states and the District of Columbia.

Constitutionality and History

Hate crime legislation has been a reality in Wisconsin since the passing of the contentious Assembly Bill 599 in 1987. Just six years after its passing, the state found itself defending the law in front of the United States Supreme Court (Wisconsin v. Mitchell).

The landmark case focused on a 1989 Kenosha, Wis., incident in which a group of black men and young black males, led by respondent Todd Mitchell, severely beat a young white man to the point that the victim was in a coma for four days.

In what remains the seminal Supreme Court decision in hate crime legislation, the court unanimously ruled in favor of the state, overturning the Wisconsin Supreme Court, which had earlier determined the statute directly violated the First Amendment.

The lower court's rationale, in a 5-2 decision, was that the statute was unconstitutional because it punished what the Legislature deemed to be offensive thought.

"The Supreme Court unanimously rejects this logic because they say from the beginning of time, trial judges have been free to consider the defendant's thought," said Daniel Elbaum, Midwest Civil Rights Council for the Anti-Defamation League, a Jewish group that supports hate crime legislation. "Courts have always been free to look at a defendant's motivation; hate crime laws merely codify that."

In the Supreme Court decision, Chief Justice William Rehnquist said all conduct cannot be considered speech whenever the person engaging in the conduct intends to express an idea.

"[A] physical assault is not, by any stretch of the imagination, expressive conduct protected by the First Amendment," Rehnquist wrote.

UW political science professor Howard Schweber said he agreed with the Supreme Court decision in its analysis of the Wisconsin statute. Hate crime penalty enhancers, Schweber continued, have nothing to do whatsoever with First Amendment rights.

"In a penalty enhancer statute, the prosecutor or the state first and independently has to prove that a crime was committed," Schweber said. "The First Amendment protects expression. Nothing in the First Amendment says that we cannot consider your motive when you commit a crime."

Despite the unanimous opinion of the Supreme Court, Downs, a renowned First Amendment expert, said he preferred the lower court's interpretation of the statute as unconstitutional.

"I personally think that it does punish you for your thoughts," he said. "[But] the fact is that you're committing an act, it's not just your thoughts, [and] that's what the Supreme Court said."

Rep. Spencer Black, D-Madison, who voted in favor of hate crime legislation when it was passed into law in 1987, pointed to the overwhelming consensus of the Supreme Court as evidence that constitutional questions have been put to rest.

"They've had a chance to look at it [and] the courts have upheld it," Black said. "Someone's intent or opinion is not what's being penalized — it's their criminal activity."

Constitutional or not, is it a good law?

Thirteen years after the Supreme Court delivered its one-sided validation of hate crime penalty enhancers, the debate continues not only over such laws' constitutionality but also their wisdom in a more practical sense.

"What everybody has to realize is that criminal law cannot solve all our problems nor should criminal law be used to solve all our problems," said Moore's attorney Stephen Meyer. "My personal viewpoint is that there's a lot of penalty provisions in the criminal code in the state of Wisconsin that don't make any sense and this is one of them."

Meyer, who said his client will plead not guilty on his criminal charges, equated the hate crime statute with other penalty enhancers he views as similarly faulty.

"You hit a police officer, that's a felony. You hit your defense lawyer, that's a misdemeanor," Meyer said. "This is one of those areas. And if I were writing the criminal code I would get rid of all that stuff."

According to Schweber, though, a Legislature can legitimately conclude that the difference between a crime based on hate and a crime based on politics, for example, is sufficiently relevant to justify a harsher penalty.

"I think that the Legislature can legitimately conclude that the public good is more imperiled by attacks motivated by race [or sexual orientation]," Schweber said. "I don't find, in principle, the idea [of] a criminal law being used to protect the most vulnerable members among us as indefensible."

Expanding on Meyer's thoughts, Downs said problems with hate crime penalty enhancers go beyond First Amendment conflicts.

Penalty enhancers are poor policy, according to Downs, because criminal law should treat all victims equally and he said the failure to do so will only polarize people.

"I think hate crime legislation is more divisive, and what we need is people to be more united on moral disapproval of those kinds of acts," he said. "We don't need to bring identity politics into it."

Referencing the infamous, racially-motivated murder of James Byrd in Jasper, Texas eight years ago, Downs said criminal activity can and should be punished appropriately without hate crime enhancers.

"The guys down in Texas who murdered Byrd and dragged him behind the car, they got the death penalty and there was not hate crime legislation down there, and that's what they deserved," Downs said. "We just need to apply the law well."