Hate crimes stalemate: Statehouse study committee offers no consensus

Several hours of testimony before a legislative study committee charged with examining a potential hate crimes law for Indiana heavily underscored one central point: there are many opinions and no common ground.

The Interim Study Committee on Corrections and Criminal Code devoted its entire Oct. 10 meeting to the topic of bias-motivated crimes. Several bills have been introduced in recent Indiana General Assembly sessions that would have added a hate crimes statute to the Indiana Code. But since the 2016 session, when one bill passed the full Senate before stalling in a House committee, none have gained enough traction to get another floor vote.

Members of the interim study committee — which includes senators, representatives and laypeople — listened to testimony, asked questions and occasionally had heated exchanges among themselves. In the end, they released a report that summarized what they heard, but offered no proposed legislation or recommendations.

Pierce

Rep. Matt Pierce, D-Bloomington, did not support the final report. While he noted the committee is limited in what it can do, Pierce said the members should be doing more.

“Our job is to grapple with these issues a little bit more in detail and come up with some more solid recommendations,” he said.

However, the committee did not appear able to reach a consensus on any issue.

Members discussed but did not resolve whether bias motivation should be an aggravating factor or an enhancement of a criminal conviction. As an aggravator, the judge could impose a stiffer sentence, but could not exceed the maximum number of years of incarceration allowed by statute. An enhancement would require a jury to find the defendant committed a hate crime.

Marion County Prosecutor Terry Curry, who testified before the committee in support of hate crimes legislation, said bias motivation should be an enhancement. Although prosecutors would be required to prove the motivation beyond a reasonable doubt, he said that is appropriate.

“If we accuse someone of this particular conduct, then I think as prosecutors we should accept that responsibility and that burden to prove these serious allegations we’ve made against the individual,” Curry said.

Already in the code

Republican legislators argued Indiana does have a hate crimes statute, but it is just not labeled as such. They pointed to subsection (c) of the sentencing guidelines, which gives a judge discretion in considering any aggravator when imposing a penalty on an offender. That provision, they said, enables judges to take into account any bias motivation.

In addition, they asserted the Indiana Supreme Court’s 2003 ruling in Witmer v. State establishes precedent for judges to sentence for hate crimes. There, the justices found that racial motivation can be an aggravating circumstance.

David Sklar, assistant director at the Indianapolis Jewish Community Relations Council, said precedent was not enough. The ruling from the court was not the same as having a law in the state statute, he said.

“We can look at the Indiana Code and there’s over a dozen different aggravators or enhancements where the General Assembly has said, ‘We want to take these specific things into account during the sentencing,’” Sklar said. “I’m not quite sure why, on this particular issue, we want to just rely on a precedent.”

DePauw University President Mark McCoy testified in support of hate crimes legislation. He said the lack of such a law makes students wonder if Indiana is a welcoming place and turns away prospective students because they want to be in a state that offers security, inclusion and equality.

“The absence of a hate crimes bill in Indiana speaks more loudly than we’d like,” McCoy told the committee.

Young

Sen. Michael Young, R-Indianapolis, countered that Indiana has a hate crimes law and asked McCoy if the university made that clear to the students. McCoy responded that the perception is the Hoosier state does not have such a law, and that giving the explanation Young suggested would be a complicated message to communicate succinctly to students.

McCoy said, “… it takes a lot of words, and I don’t get to answer in every case because a lot of times they turn away.”

Young asked, “Why don’t you put it on your website and put it in your literature that Indiana is one of (the) states that has a bias-motivated crimes statute, which is subsection (c) in our sentencing guidelines?”

McCoy said, “What I am suggesting is that the perception is other than the reality, and when we take that many words to explain — and we often don’t have that many opportunities to explain — they go looking at other places.”

Young replied, “How many words does it take to say, ‘Indiana already has a bias crimes law?’”

McCoy countered, “The simple question is, ‘Yes or no, does Indiana have a hate crimes law?’”

Young injected, “Yes.”

But McCoy continued, “And I’m forced to say, ‘No, we do not have a hate crimes law.’”

Micah Clark, executive director of the American Family Association of Indiana, which has opposed the previous hate crimes bills, told the committee he wanted hate crimes to be prosecuted and victims to be protected. He advocated the view that the sentencing statute gives Indiana judges room to consider a bias motivation as an aggravator but said he could possibly support a separate law reaffirming that.

“What I would like to do is reaffirm what judges have the ability to do so that people know that we’re not straddled with this smear that we don’t have a hate law, as if we don’t do anything about it,” Clark said.

Including a list

Taking a break from the hearing, Young said he was raising questions as part of the debate to explore the issue. He noted he has chaired the Senate committee that heard the hate crimes bill authored by Sen. Sue Glick, R-LaGrange, and has supported it.

“I want to get the votes so we can pass something,” Young said. “… The list has been the problem. People want to add to the list, people don’t want all the groups that are on the list (to be) on the list.”

Glick’s bill, as many hate crimes laws do, listed the characteristics of the victims that would be considered the motivators for the violent act. A majority of the states with hate crimes laws include characteristics of race, religion, national origin, gender and disability, while Glick’s list also contained gender identity and sexual orientation.

Proponents say having a list is important but does not give special protections for one group over another. They highlight the Georgia Supreme Court, which unanimously overturned the state’s hate crimes law in 2004. The justices found that without the list of characteristics, the statute was unconstitutionally vague and, as such, failed “to provide fair warning of the conduct it prohibits.”

However, Indiana Attorney General Curtis Hill’s office is among those who oppose the inclusion of a list. Appearing before the committee, Parvonay Stover, government affairs director for the Indiana Attorney General’s Office, said while the hate crimes bill that moved through the Senate got support “because it added those magic words ‘bias-motivated crimes’ to our statute,” it would not have had a substantive impact on penalties.

Lanane

Echoing other opponents, Stover said including a list would mean excluding some people. The Attorney General, she said, is advocating for a sentencing enhancement of two years to six years for misdemeanors and low-level felonies, and six years to 20 years for all other felonies. The enhancement could be added on top of any sentence where an offender is shown to have acted with the intent to intimidate or terrorize.

Senate Minority Leader Tim Lanane, D-Anderson, was skeptical. He said he was concerned that crimes perpetrated because the offender did not like the victim’s race or religion or other characteristic would go unpunished because the intent of the crime was not to intimidate or terrorize the victim.

“We want a clear statement that we do not tolerate crimes based upon bias, animosity or prejudice against a person based upon these common characteristics,” Lanane said. “… Seems to me we’re dancing around; we’re done with dancing. We want a clear statement in the state of Indiana that we don’t tolerate these types of crimes.”•