(SALT LAKE CITY, Utah) – Indiana isn’t alone in trying to avoid compiling a list of characteristics covered by a hate crime law. But two states which omitted lists from their laws have run into problems.
Indiana has been lurching toward a law allowing judges to hand down longer sentences for hate crimes. Senate Republicans on Tuesday deleted a list of victim groups from the law, instead declaring that judges can consider factors “including bias,” without discussing bias against whom. A final Senate vote could come as early as Thursday.
The stripped-down language closely parallels a Georgia law allowing harsher sentences for crimes rooted in “bias or prejudice.” Georgia’s Supreme Court struck down that law in 2004 as unconstitutional. A unanimous court said the vague wording would lend itself to arbitrary decisions, like charging a campaign worker who tore down an opponent’s yard signs. Georgia has never replaced the law, and remains, along with Indiana, among five states without a hate crime law.
Utah’s hate crime law remains on the books, and watchdog groups such as the Human Rights Campaign and the Anti-Defamation League don’t include Utah with Indiana on what Governor Holcomb has termed “the naughty list.” But Utah is the only state whose law doesn’t list what characteristics are covered. Utah State Senator Daniel Thatcher (R) says deciding which groups to include was as controversial there as it’s been in Indiana — so legislators, in his words, “got way too cute.” Utah’s law covers acts which interfere with “constitutionally protected activities.”
The law has never been successfully used, and Thatcher contends it’s unenforceable. In one case, Thatcher says a man shot up a synagogue after hours and bragged in a white supremacist chatroom about driving Jews from the neighborhood, but was charged only with destruction of property. Courts ruled he hadn’t interfered with anyone’s right to worship..
Thatcher’s bill to add a list is scheduled for a committee vote this week, and would cover 17 different characteristics, including marital status and homelessness. Thatcher calls that bill “sausage,” but says his original bill had to be expanded to satisfy concerns about covering some groups and not others. He says he’ll support anything that’s both enforceable and constitutional
Thatcher says opponents who warn a hate crime bill could punish protected First Amendment speech have a point. Like Indiana’s bill, his bill would apply only at sentencing, after a crime is committed. But Thatcher says those arguments illustrate the problem with a catchall description of “bias.” Since bias refers to someone’s thoughts, he says it would be impossible to prove — he says the focus should be on the acts someone commits.
Except for Utah, every state with a hate crime law lists race, religion and ethnicity as characteristics which can be the targets of hate crimes. But laws vary widely beyond that. 31 states cover people with disabilities. 30 include sexual orientation and gender, with 16 including gender identity. 15 hate-crime laws include age, and five address political affiliation. And some states are unique, with immigration status part of the law in Connecticut, homelessness in Florida, military service in Vermont, and police and other first responders in Louisiana.
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