Don't Be A Hater | The Hoglawyer

Thursday, March 8, 2007

Don't Be A Hater

Posted By on Thu, Mar 8, 2007 at 7:21 PM

There are so many bills flying through the legislature right now - its impossible to even be aware of all of them. In the extended entry I have the whole text of a bill I think is just a bad idea. Senate Bill 264 is a criminal sentence enhancement bill. It enhances penalties if a crime is found to be a "hate crime." A hate crime is allegedly one in which the purpose of the act is to prevent someone from exercising their constitutional rights, such as speech or religion. Also, it is a crime in which the victim was selected because of their race, religion or sexual orientation.

I get annoyed in general by the legislature's pre-occupation every session with being "tough on crime" by making enhanced sentences. This bill is far worse because it makes a crime versus one person more important than a crime against another person simply because of their status. We have always had enhanced penalties when a victim is very old, very young, or very vulnerable such as inmates or  developmentally delayed people. I don't have a problem with that. But when we enhance a crime because allegedly the victim was selected because of their minority status -- the trial would take on an entirely different set of rules. Instead of just proving alleged criminal attacked victim with the intent to do harm -- the trial would allow evidence such as the what types of books the person read, what groups they are in, and maybe even what religion they are.
    Of course I think racism is wrong - but I don't think it should be illegal to be a racist person, sexist person, or in general a bigoted person. Its a cliche but freedom of speech also means freedom to hold and espouse unpopular ideas. Once we make a crime a hate crime --- what was once merely unpopular speech becomes evidence to support an enhanced criminal penalty. The purpose of the bill is to protect people from being made a victim because of their beliefs or minority status --- but ironically it also punishes the alleged criminal for his unpopular beliefs as well. 

This bill has the potential to backfire as well. It could also be used to enhance penalties when a minority race or minority religion attacks someone from the majority. I can easily envision a situation where, for example, a protester at a civil rights rally is accused of attacking a police officer   The protester claims self defense.   But the prosecutor sees this as a hate crime and all he has to do is prove the police officer was "selected" because of his race.

This is a bad idea and a bad bill.   Of course, that means it will probalby sail out of the legislature. 1 State of Arkansas
2 86th General Assembly A Bill
3 Regular Session, 2007 SENATE BILL 264
4
5 By: Senator Wilkins
6
7
8 For An Act To Be Entitled
9 AN ACT TO CREATE THE OFFENSE OF HATE CRIME; TO
10 ESTABLISH PENALTIES FOR A HATE CRIME; AND FOR
11 OTHER PURPOSES.
12
13 Subtitle
14 TO CREATE THE OFFENSE OF HATE CRIME AND
15 TO ESTABLISH PENALTIES FOR A HATE CRIME.
16
17
18 BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF ARKANSAS:
19
20 SECTION 1. Arkansas Title 5, Chapter 60, Subchapter 1 is amended to
21 add an additional section to read as follows:
22 5-60-124. Hate crime – Penalties.
23 (a) As used in this section:
24 (1) "Disability" means a physical or mental impairment that
25 substantially limits a major life function;
26 (2) "Major life function" means walking, seeing, hearing,
27 speaking, breathing, learning, or working; and
28 (3) "Sexual orientation" means heterosexuality, bisexuality, or
29 homosexuality.
30 (b) A person commits the offense of a hate crime if the person commits
31 any offense defined by a law of this state for the purpose of:
32 (1) Interfering with the victim's free exercise or enjoyment of
33 any right, privilege, or immunity protected by the First Amendment to the
34 United States Constitution;
35 (2) Retaliating against the victim because the victim has
36 exercised or enjoyed any right, privilege, or immunity protected by the First
SB264
2 02-05-2007 13:37 GRH175
1 Amendment to the United States Constitution; or
2 (3) Selecting the victim because of the victim's race, religion,
3 color, disability, sexual orientation, national origin, or ancestry.
4 (c) A hate crime shall be punished as follows:
5 (1)(A) Except as provided in subdivision (c)(1)(B) of this
6 section, if the underlying offense is a violation or an unclassified
7 misdemeanor, the hate crime is a Class A misdemeanor.
8 (B) If the penalty for the underlying offense is greater
9 than a Class A misdemeanor, the penalty for the underlying offense may be
10 imposed under subdivision (c)(1)(A) of this section;
11 (2) If the underlying offense is a Class C misdemeanor, a Class
12 B misdemeanor, or a Class A misdemeanor, the hate crime is a Class D felony;
13 (3) If the underlying offense is a Class D felony or a Class C
14 felony, the hate crime is a Class B felony; or
15 (4) If the underlying offense is a Class B felony or a Class A
16 felony, the hate crime is a Class Y felony.

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