Tightening Up the Hate Crime Law

I’ve written previously about Vermont’s inability to protect targets of hate crimes, especially those in public office. People of color, including former state rep Kiah Morris, have been hounded out of elective office — and have gotten no support or protection from law enforcement or prosecutors. Women in public life, who are frequently targets of harassment, also have to carry on with no recourse in the law. Which means, hey, the harassers win!

Turns out, somebody’s trying to do something about that. The House Judiciary Committee is working on a revision to Vermont’s hate crime law aimed at allowing more prosecutions while preserving Constitutional rights. More on this after a brief digression.

This is what they call a “committee bill,” meaning it’s drafted by a committee rather than an individual legislator. Coincidentally enough, VTDigger’s Kit Norton covered the phenomenon in last night’s episode of “Final Reading,” Digger’s free-subscription daily summary of legislative activity.

Unlike an ordinary piece of legislation, which is formally introduced by a member of the House or Senate, given a bill number and referred to a legislative panel for discussion, a committee bill is assembled, piece by piece, within a — you guessed it — committee. 

It lacks a bill number and isn’t easily found on the Legislature’s website. It can evolve quickly and quietly, under the radar, until it springs from committee, fully formed, onto the House or Senate floor. 

Norton writes that, for whatever reason, there are lots of these bills in the Legislature this year. He’s right; committee bills don’t show up in the Legislature’s searchable list of introduced bills. You have to go to the committee’s website and search around.

Back to the matter at hand. Apparently House Judiciary has been low-key working on this, in consultation with the Attorney General’s office. I’m glad to hear that, because I’ve specifically attacked T.J. Donovan for failing to prosecute hate crimes. This means Donovan recognizes the need for a change in the law. On Wednesday morning, the committee began hearing testimony on the bill. Testimony that showed how difficult a balancing act this legislation will be.

The bill is numbered 21-0932; the language can be found on the Judiciary Committee’s website. The most impactful change is the removal of a single word — “maliciously” — from current law. Right now, prosecutors have to prove that a defendant’s conduct was “maliciously motivated.” That’s too high a bar in many cases. Which has contributed to the fact that there’s only been one successful hate-crime prosecution in Vermont in the past two years.

We are, of course, a small and relatively low-hate jurisdiction. But we’re not that low. Max Misch himself has done more than that.

{allegedly]

Besides removing “maliciously” from the law, 21-0932 would also require an annual report detailing

  • Hate crime incidents in Vermont reported to a national database
  • Any hate crime resulting in a criminal sentence or successful civil suit
  • Demographic information on defendants

The reporting requirement is meant to address the inconsistent information-gathering process among law enforcement agencies. Often, we don’t get the demographic data we need to measure the specifics and extent of hate crimes in Vermont. The report would be written by the Department of State’s Attorneys and Sheriffs, and delivered to the House and Senate Judiciary Committees.

There’s a related bill, H.317, that would establish a “Bureau of Racial Justice Statistics and the Bureau of Racial Justice Statistics Advisory Panel to collect and analyze criminal justice data in order to identify and address racial bias in the criminal justice system.”

Donovan’s office supports 21-0932, as do the state’s attorneys and sheriffs. Assistant AG David Scherr told the committee that the AGO believes the bill would withstand a constitutional challenge.

There was much discussion about fine points of proposed legislation. Falko Schilling of the Vermont ACLU argued for “intent” language as an alternative to “maliciously.” The organization’s version would require that a suspect “intentionally selects a victim on the basis of perceived” race, gender identity, religion, disability, or other factors. Some committee members worried that the ACLU’s language might prove to be a higher bar than the current law. “We believe this is the appropriate bar to clear,” Schilling said, and acknowledged that the ACLU version “could be seen as a higher bar.”

At the end of the hearing, Judiciary chair Maxine Grad said the panel would “pause on this for now,” to allow members to think through the issues. But she plans further hearings and committee discussion. That may or may not happen quickly enough for passage in 2021. Policy bills must get through one chamber by this Friday in order to be considered by the other chamber this year — but committee bills, as Norton reported, are exempt from the deadline.

So it’s possible that some version of 21-0932 will emerge from Judiciary and move on to the full House. But despite the exemption for committee bills, it seems unlikely to move through the Senate this year. The good news for people who favor the bill is that this is the first year of a biennium. Bills that get partway through the process will be picked up again next January.

Kudos to the responsible authorities trying to address the gaping hole in hate-crime enforcement. And I acknowledge the inherent difficulty between prosecuting hate crimes and the constitutional right of free speech. But we need to do something about this, so that all people will feel free to enter public service without exposing themselves to the haters. This bill is a step in the right direction.

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