 We are taking up H428 and act relating to hate motivated crimes and misconduct. And there is on the Senate Judiciary webpage. An amendment draft 1.2 by Bryn air legislative council to H428 that the committee will now be discussed. And hopefully as witnesses come in they can. Remind them the latest draft is this was discussed at our last time we took up the bill. And I think. Bryn go through the changes. Okay. So good morning committee. For the record, Bryn here from legislative council here to talk about your amendment to H428. So this amendment does a couple of things. I'll just go through it quickly since it's I think it's been a week since you looked at the house past version. So I'll remind the committee. How this differs from the house past version. So section one is the hate motivated crime statute and you'll remember really the only change that was made in the house version was the removal of the word maliciously. And the new requirement would just be that the conduct defendants conduct be motivated by the victims actual or perceived protected characteristic as listed on lines 11 and 12 and 13. And you'll see what this draft does is it still strikes maliciously but it also strikes all of those characteristics, because we instead define that protected characteristic in subdivision three at the bottom of the page. So let's swap out that list of terms for the, for the defined phrase protected characteristic. So that's one change made by this draft. Can I ask a question about ancestry. Of course, assuming we all have ancestors. So find somewhere else. I'm familiar with ancestry.com. Not that I've used it, but people are finding out all kinds of things. I think of it at long last brothers. So is it defined somewhere. You know, I'm not sure if it's defined in title 13. I can check on that. Presumably everybody has. I think of it as ethnicity. Yeah. In other words, it, you know, my ancestry is part German. Germany is not my country of origin. It's not a race. So, but if somebody were prejudiced against my ancestry. You know, country of first origin. That's what I thought it was. It's in current law that I just, I guess it hasn't come up, but it does. So what I found is, I suspect it's, it's, you know, I may. A lot of people. I may. You know, I found a sister through channels that I had a sister that year I had when I was in my 60s. Yeah, 60s. So she's an ancestor. I don't know how that makes it a class or my ancestry. What I thought was my ancestry no longer, but like Senator. Minus. So, so does this mean that if. If somebody commits a crime against. Phillip. Because they hate Germans. It can be considered a hate crime. I think before we go too far, we probably ought to check on how this. Years ago, there was a lot of prejudice. French. Yeah, particularly the French that moved here. Maybe the origin of that. I know in Bennington there. When I was first running for office was actually shows on the local radio station. And there was a lot of discrimination. And again, two. So I think we ought to before we go too far here. At least check that out and how that's been used. Does it. They have been written. Yeah, I can see if that has been interpreted by the court. It's often listed in states anti-discrimination laws as a kind of similar characteristic to national origin. So I'll check on that for the committee. So would you like to keep going? Yeah, would you please keep going. Sure. So subsection B, this is new language that didn't appear in the house version. And this, I added this language at the request of Senator Sears. And the. Massachusetts has is working on a. Overhaul to their hate crime statutes. And this is a part of. A part of that bill in Massachusetts that provides that. A victim's actual or perceived protective characteristic. That need not be the sole reason for defendants conduct or even a substantial or predominant reason for defendants conduct. So the only thing about that is the word substantial. So when you say it need not be predominant or the sole reason, those make sense to me. But if you say it doesn't need to be substantial, then you're saying in effect, it can be insubstantial. Which. On its face kind of indicates that it's not a large reason. Or. Does that make sense? If you say it doesn't need to be substantial. That's. Bringing it down to the level where. You're saying it. It's just one factor among many. So that's the only. Word there that gives me pause. I. Because there's only two options. Either it's substantial or it's not substantial. If it's not substantial. It's weird that we're enhancing the penalty. Because of it. Right. I think Massachusetts is revising their laws because of the inability to use. Current law in Massachusetts. A lot of hate. No, and I think we get there. If you don't have substantial and you have predominant or the sole reason. I think that would be better myself. Well, maybe some witnesses. Okay. And then lastly is subsection C. And this just adds the definition as I mentioned before. It replaces that list. Found on lines 11 through 13. Down here. As the definition of protected characteristic. So same list just appears here. And then the last change from the house pass version is that you've removed that annual report requirement that appeared in the house pass version. That was in subsection B. So that's does not appear in this draft. And you remember it was the. Annual report. That was required to these committees based on. Bias incident. And that is it. Right. So. We now have a number of witnesses scheduled. I thank them for being here a little bit early. David sure is our. Scheduled to be the first witness. Hey. And we will be dealing with. One point. Obviously a welcome to speak to the. Oh, I wanted to mention one other thing. I did get an email from. Stitcher. Senator balance. Senator waits. Oh, God. Go there. Yeah. Basically he wants. Anybody. His name is Noah Zorn. And he would like consideration. Acquiring those convicted of a nonviolent hate crime to attend life after eight meetings. To attend what? Life after eight meetings. Wife. WIFE. Life. Life. Life. Life after. Eight. Eight meetings. Evidently similar to. AA meetings. Oh. And add immigration status to protected class, but I think it already is. And those sentenced with a violent hate crime sentence to seven years in prison and market versus wire up for five years. I said I would. Mention that. And I think, you know, I'm not sure that. We want to go to a mandatory sentence. Those are his suggestions. I think, you know, nonviolent hate crimes. Maybe there should be some requirements. I don't think we're going to go to a mandatory minimum. David. Happy to hear from you. Thank you, Senator. Thank you, chair. Thank you. Committee. Again, for the record, David chair with the attorney general's office. The attorney general's office does support this bill. We think it is an important step forward and making sure that where there are instances of. Offenses that have been motivated. At least in part by. Hatred or bias against a. Protect people's protected characteristics. We think it's important to be able to make sure of those crime. That. Additional. Motivation is prosecutable. And we certainly think that this is constitutional. And we don't believe that the word maliciously. Is. Is necessary. Excuse me. It's necessary. To retain the constitution. Of the statute. And again, we do think it's. An important innovation in part because I should say innovation. This is the language we're talking about here is actually. Fairly common language for how. These types of offenses are defined around the country. We're certainly not unique in having a statute like this by. Not by any means. I mean, we are. Part of the vast majority of states that have a. Statute like this. And maliciously is not having that extra term. Arguably could impose an extra burden. On prosecutions for these offenses. Is not. Common around the country. And I think bringing us. We're removing that word really just brings us into line with. Common practice. I wanted to say a few. Words about constitutionality. And I believe the committee has heard some of this. So I'll try to be fairly brief, but I do think it's important to. Discuss that a little bit. And. And the case law that underlies it actually provides some powerful and important. Authority for why these types of statutes are necessary. And I think that's a good point. I also am just now seeing. And thanks to legislative council for going over it, but I am just now seeing new subsection B. We are sub. Yeah, subsection B. That is language that we would support conceptually speaking. And we're happy to work on tweaks that may be necessary. Another committee had a little discussion on that just now. We do think that that is an important. But I think that is a good point. I'm just not saying that you're doing their best to. Determine this type of behavior and to hold people to account for it. A way that some states do it is to simply say. Sorry, let me say specifically California, for example, simply says. Whether something is motivated in whole or in part. And they, you know, to imitate the California way, whole or in part by the victim's actual perceived protected characteristic. I'm not suggesting that we have to do it exactly the same way just noting that that concept that you're embodying in subsection B is also something that happens elsewhere and that we do think is a useful and helpful way to make this statute more usable in Vermont and again hopefully hold people to account for this type of behavior. Again these types of laws have been established as constitutional by the United States Supreme Court. The seminal case in this area is Wisconsin versus Mitchell and Wisconsin versus Mitchell did hold that these types of statutes where there is a crime that has happened and then you are finding that it was motivated by a certain animus against a protected class. This is constitutional and it is permissible and again many states around the country following that ruling haven't acted these types of statutes and we are in line with the vast majority of jurisdictions and having something like this. Wisconsin versus Mitchell's key point was that we are the way this statute operates we are by definition talking about activity that is unprotected we're talking about crimes. You can't bring this hate crime charge without there having been a crime in order for this enhancement to take place in terms of section one of this of this bill. So we're already talking about we're talking only about constitutionally unprotected activity by definition. Criminal activity you know proven charges of criminal activity that is not constitutionally protected and that does open the doorway to being able to enhance penalties or add on to penalties in the way that this statute already does in Vermont's current law and will continue to do going forward. The the court in Mitchell pointed out that states have an interest in punishing this type of behavior more harshly they said and and we agree with that concept. The interest is that you know bias inspired conduct is thought to inflict greater individual and societal harm according to many of the people who briefed that case the Wisconsin versus Mitchell case. The bias motivated crimes are more likely to provoke retaliatory crimes inflict emotional harms on their victims and incite community unrest and and those the court in those cases were drawing from amicus briefs filed by entities like the American Defamation League and the American Civil Liberties Union and making those points. I would add to that that these crimes commit a gender abroad community harm because other people who share these characteristics will feel threatened in ways that purely personal violence may not have the same type of broader community harms which is not to say that any violence is okay and doesn't inflict community harm of course it's it does that's why they are brought to criminal court but these have a particular harm across a broader spectrum and for that reason the state does have a valid interest in being able to hold people to account for that and punish more harshly and hopefully deter that behavior in the future and tell those communities that we take these things seriously and we are doing what we can we're using all the tools that we have to try to deter that behavior and to protect those communities who are defined as protected classes under our law. A couple additional points I wanted to make. The statute in Wisconsin versus Mitchell is what you might call a victim selection statute the particular action that it increased the penalty for was the choice of victim that's narrower than what our statute does and frankly it's narrow there there are other victim selection statutes on the books around the country but it's narrower than what many of the statutes these hate crime statutes are and we do not believe that Wisconsin versus Mitchell is limited to simply victim protection sorry victim selection statutes but that its logic does apply a little bit more broadly to actions that are motivated by somebody's identity it may not be that the sort of act the violence whatever it might be happens solely as a result of choosing somebody as a victim it may have happened because let's imagine an altercation in a bar or something like that somebody says something to somebody else in the response that's called forth the but perhaps a violent response that constitutes as an assault of some kind it's called forth to a degree and to a level that would not have happened had the person not had a certain protected characteristic and that's not really victim selection or it you know would be would be more difficult to argue that because these this is an interaction that happened between two people and it it was really the escalation to a certain level of to a criminal level that resulted from the bias motivation and for that reason having a slightly broader definition than victim selection is important in order to encompass the behavior that should be deterred and held to account and we do think that that is constitutionally permissible again where we would we are not on our own by any means by having a statue constructed like that and we and we are confident we're on secure constitutional grounds now I do not believe any statute like this has been overturned and the final point I want to make is that there are anticipating some of the other points that might be made here this morning there are there is a supreme court case that notes that not any biased thoughts can that somebody might have sort of hate motivated thoughts or actions that somebody might have can be used to enhance sentencing and that of course is true sentencing can't be used to punish you know just anything that might be in somebody's head it does have to be limited to the motivation for why this crime occurred or the severity with which it occurred and so it is limited in that way and I'm referring to a case called Dawes and so that's true I want to note that but what the Wisconsin v. Mitchell case made clear and and distinguished itself from Dawes in saying that we're talking here about what the motivation was for the crime that occurred and for which there's a conviction so we don't believe that there's any sort of issue with that it is clear that you couldn't a prosecutor couldn't say well I heard that this guy is a member of the some hateful group and for that reason we should punish this person more that wouldn't really hold water unless there was a really specific connection to them to why the person behaved the way they did in the specific instance that we're talking about so but that is in fact permissible to punish more harshly as this this statute already does and proposes to do a little bit more smoothly and again we do believe that the in whole or in part concept that's embodied in subsection b here in the proposed subsection b is reasonable and actually important in the way that the law is the direction in which the law is moving in other states and again to hold people to account for this type of harmful behavior we believe it's important and reasonable and constitutionally appropriate to move in that direction ourselves yeah i asked david a question sure david when i was reading this two things popped out of me i think philips can ask you about the word substantial but should we should we be using the term sex or should we be using gender now and is immigration status covered so we use both sex and gender identity and i think that that's appropriate i i do think for things like this having the same list of protected characteristics throughout the vermont statutes as consistently as possible makes sense this borrows from lists that well i don't i don't know which came first i i couldn't testify to that but this is in line with other areas of vermont law both civil and criminal where we use the protected class list and i think that having both sex and gender identity um though i do actually i let me speak more clearly i think that those do address different things and it is important that we have both and we do have both but gender identity isn't in here it's at the oh there it is oh i see it's after after the national guard section what's not here is what what i don't think is here and what what is also one of the reasons for the massachusetts change is the immigration status which senator white just mentioned i that that was in the massachusetts effort that's adding immigration status as an effort to combat what is an epidemic of asian hate in the united states i don't think that we would i don't know what we need to make sure that that covered by national origin or should it be yeah senator i do believe that that would be covered either by national origin or by ancestry those particular issues that being said i'd certainly i would actually want to check back that when you get an immigration status there's a number of complexities that start coming into play and i'd want to check back on that but that specific issue i do think is covered by national origin and or ancestry the article i had sent to bren i had that's where that section b comes from um do you want to make senator white just remind me of the covered national center benning hey but i'm struggling with how this language appears to be watering down the initial hurl for a prosecution let's assume for whatever reason i've cheated you out of a hundred dollars and you now walk up to me and start pumbling me as a result and at the very end of your pumbling you scream you stupid papist mick uh you've just made a statement um and the way that i'm reading b for your making that statement and you're now subject to an enhanced penalty do you read that the same way i'm reading it it may be the case that you are in a case like that it but it would be hard to again some of these things are going to come down to challenging issues of proof um and it's not necessarily going to be easy in any of these cases to uh to show definitively that the motivation was your identity and identity that's one of these protected characteristics uh so in a case like that the one you bring up it may be that that other facts can show that the intensity of the response that was called forth or the fact that you resorted to a violent response was because of your or sorry you're a sailor's uh understanding of who you have your identity as part of these some of those are part of these protected classes but it may be the case that um a jury finds that in fact that was just sort of an additional insult tossed on at the end that didn't really you know they would have beaten you up anyway so it's possible that the way the facts come out and the specific ways in which things happen what may have been said by this person before and attack all those things are going to come into play in terms of actually whether this is provable as being motivated by that uh it may like i said it may also be the case that as it comes out a jury decides well it was an additional insult but we can't really find the proof to show that this was motivated a whole or an whole or an apart by uh you'll buy the dislike for these certain categories it almost seems to me though that b is almost eliminating i mean i see the word motivated in a but when you say it doesn't have to be substantial or predominant or the sole reason you're implying that it doesn't really have to rise to anything other than a statement that could be perceived by a jury as possibly motivating the offense i guess i'm just trying to play that out in my head and i'll wait to hear from other people but that's to something i'm thinking about appreciate that but i think the effort here is to make my effort in changing this based upon what's going on in massachusetts is to try to make hate crimes work here in in bremont we've seen cases of pre vicious behaviors and no charges can be brought while they weren't necessarily violent certainly the trolling the um hate motivated speech the all the things that we saw at least in bennington county would on the representative morris weren't able to be prosecuted because of the current status of our hate criminals and so that's the goal where there be is the right way to get there or not the goal is to be able to actually to make a change in the way we perceive behaviors i understand dick and i support the concept i just don't want to go too far in the other direction and i'm trying to figure out in my own head how you would word this i i'd actually looked at a and thought it would be somewhat better if who's where line 10 says attempts to commit any crime or whose conduct is motivated at least in part by the victims actual or perceived that that that uh and eliminate be all together but it just seems to me that b is is giving an extra oomph to my concern if i could mr chair jump in there so i'm kind of on a similar track with joe in terms of how it might be edited i like david's suggestion of in holer in part so i think if under a we said who's whose conduct is motivated in holer in part by dot dot dot we left be but removed substantial um so you'd have above the idea that it doesn't need to be in whole could be in part but and and then down below you'd say it doesn't have to be predominant or soul but what i like about the language david was using is it's it's uh it's it's framed in the positive way so this is what it what it is in holer in part motivated by and what what i'm stuck on with b is it's negative it it doesn't need to be substantial and that seems to me to point directly to the idea that it could be insubstantial so um both the reverse framing and the word substantial i just don't like but if you got rid of substantial and put in in holer in part above i i think i'm i'm fine with that i'm just i'm just raising some issues here so that we can um the level of the troll in this country and to some extent in the state regarding needs to needs to change it's not going to change unless we change some of our laws not out to unconstitutional executive with a range of speech i agree with philip in the direction he's taking it okay well david did you have anything further we kind of talk over i appreciate unfortunately um no i i kind of marking up the bill as we speak all right and i i don't have any major additions here i would just note i appreciate the discussion around the in holer in part and happy to help us as it needs to go forward and we do think it is important to note again that the reality of how these things play out is that they are rarely it is unusual for that to be the sole motivator it seems to be happening in some cases around the country but the way these things play out as a matter of reality is that it is part of what's going on and so we do think that addition is important and we appreciate the committee tackling that uh and including that in the statute trying to hear from the other side with our limited excuse me the limited time we have this morning uh because we need to try to get to um the appropriations process of our discussions um hopefully by 1115 uh not sooner um i wonder if i could jump to rebecca turnip supervising attorney the public division the officer and then pick up the scent with john came morning good morning good morning uh good morning uh for the record rebecca turner from uh public division office of the defender general i can't miss a bit off today uh thank you for uh moving me out senator sears to just express uh our reaction to this bill and i just i'm looking at the draft language in draft number 1.2 and trying to absorb and adjust um but i think i can provide some detailed reactions to to uh give you some additional thinking and and again uh this is preface with an overall i was prepared to come in and explain um why the opposite of general objects to the proposed uh bill as it came out of the house uh that opposition continues with this latest draft 1.2 and let me just jump to why uh because why we oppose it in the first place it and it is exacerbated the reasons why are even more marked with with a new proposal um first i heard um attorney share talk about how our vermont statute is in line with other state hate crime statutes sentencing enhancement statutes in the federal loan let me just correct that it is not in line in two significant aspects first intent is not a requirement uh on the part of proof of the prosecution meaning that there is no requirement in this 14 55 currently and certainly as the proposed amendment would drop maliciously and certainly as senator benning and and um as has talked about senator beruth also in terms of concerns that this additional language even dilutes further any um any requirement as to what is going on in the person's mind again any level of mens rea mens rea and intent is not the same as motivated maliciously arguably arguably is where you get an intent element again our vermont statute is striking in that it does not have a willful intent requirement as does the federal counterpart title 18 usc 249 as well as the wisconsin statute that was addressed um in wisconsin v mitchell and attorney share acknowledged that knowledge that that was a narrower statute than the one here he talked about it about narrow in terms of purposefully or the connection of targeting uh selecting the victim but i also want to point out that there is a purposeful there's a mens rea requirement there so that is significant difference um the other second significant difference is that our sentencing enhancement statute applies to any crime and so it is not limited uh and by way that means it's not limited to crimes involving physical conduct it does not just limit itself to um assault crimes murder etc it applies to pure speech crimes now why that's significant is that both of those reasons the lack of a mens rea the lack of a narrowing component applicable just to crimes involving physical conduct again distinguishing features uh from the federal statute and um what was at issue in wisconsin v mitchell again 18 usc 249 federal hate crime statute requires physical conduct as well as an intent so that's huge it's huge for purposes of surviving constitutional challenge under the first amendment uh attorney share suggested or said that this this statute satisfies uh and constitutional first amendment concerns but as recently as 2016 17 and a decision in 2018 of our arvaman supreme court i challenged the facial validity of this sentencing um enhancement statute under first amendment grounds but for the fact that we went on other grounds the supreme court did not address my constitutional challenge and my my challenge there was again based on a lack of a mens rea and uh and the application to pure speech crimes now attorney share said that not all crimes are protected by the first amendment not all speech is protected by the first one certainly uh this committee has heard plenty of testimony around the first amendment to understand that there are certain unprotected categories but what is also further nuances even within unprotected categories of speech fighting words for instance true threats there cannot be uh selective and increase punishment based on the particular ideas expressed within the unprotected speech so hate crimes you cannot elevate certain particularly hateful thoughts and still survive first amendment um challenges again that is a case by r.a.v um the city of st paul 1992 your supreme court case that i did not hear uh mentioned today so those are the two overwhelming reasons why i've the our office has had uh concerns with this statute i understand the motivation behind this current statute i was just trying to pull up the massachusetts proposed bill because i wasn't aware of what's been going on there to see how closely this new language tracks with that but again the concerns raised earlier are just heightening my concerns which is that merely uh not requiring a direct link meaning the defendant chose the complainant because um because of the the purposeful or intent behind knowing that that person was falling within one of these groups under 1455 is the problem here it clearly permits um that to not be a strong link or connection now the u.s supreme court when it considered wisconsin v mitchell and upheld that uh sentencing enhancement there it involved a black defendant who was sentenced to death for murdering a white male complainant and there it was challenged he challenged it under first amendment grounds and the u.s supreme court upheld his death sentence um because uh they found that there was the requisite intent and again that crime involved physical conduct in that decision they they considered another decision they had done and that is barkley you know that is uh daris dawson dawson v delaware 1992 case and there they struck down a sentence and there it involved a white defendant who was subject to a sentencing enhancement based on a k crime and there was struck down as violating the first amendment because uh the connection between his hateful bigoted beliefs there dawson was uh the facts set established that he was a member of white supremacy gang while in prison and the u.s supreme court said that there wasn't a sufficient link between his beliefs which are perhaps unconscionable and hateful and and not defendable by by many people um but were otherwise not linked to the underlying conviction uh and where he was being subject to sentencing and that's where the supreme court said that the first amendment prohibits this uh sentencing enhancement on hateful bigoted thoughts uh and so that that is just i'm sorry for the interruption the other thing i wanted to bring to the attention of this committee um is at the heart of this is not about someone escaping conviction there are there are all the crimes already on the books to prosecute and convict and get a sentence for conduct the judge already has within his or her discretion to impose a sentence higher or lower based on the underlying circumstances including if there's uh information before the judge at the time of sentencing a hateful circumstances hateful motivated conduct so that is there so the issue here is what is the purpose served of subjecting a particular type of crime um to lengthier terms of imprisonment now i've heard here this morning that their the goal would be to try to address to try to i think presumably lower the the challenges on behalf of the prosecution uh to meet these requirements therefore presumably more people would be subject to these sentencing enhancements and then the question is what next what we do know and is that the studies have shown that lengthier sentences do not mean that deterrence follows that is significant if the point here is to try to deter future hate crimes if lengthier sentences do not deter do not effectively rehabilitate a defendant or person to come back out and not be subsequently hateful uh and bigoted then what are we doing in this um in this moment when so much has to be done and i readily agree that that there are so many events that we read about every single day that just reminds us how much needs to be fixed this statute does not fix this we know that these statutes have been on the books for years and years and years we know that community members do not feel safe uh in terms of self-reporting crimes to law enforcement so i don't see how fixing a very specific end of it will solve anything particularly since not only do we have a reporting issue and trust with law enforcement we don't we at the end of the of the other end of it we don't know actually we do know lengthier terms of imprisonment do not deter crime i was just reading one study uh possibly supports increase uh likelihood of crime we know that that if there is a conviction and sentence secured that it will be subject to considerable challenges and litigation because it is this proposal the current statute on the books violates the first amendment and i'll stop here because i understand that the committee's time is short and i'm sorry for my interruption um part of zoom is you're at home and you have things happen and you have to attend to them i apologize um any questions for rebecca i think you've been fairly clear and i'm sorry i missed part of your testimony the good thing about a lot of bad things about it one of the good things is i can catch up senator white so i'm just um i guess i when you talked about that it wasn't limited to crimes of physical um confrontation or um violence that is um how do how do we um create a crime that isn't i i got a little confused at that point because um if speech isn't really a crime so am i confused here well i i i think what what you're teasing out is that there are criminal statutes on the books that criminalize speech um and i'm trying to it's it's the threatening threatening uh threatening speech it's fairly new and i'm just blanking on it for the moment and you're right that uh that there has been heavy litigation in this area in terms of when speech itself is the target of the crime can it be criminalized or the first amendment and the answer is yes if right yes if first uh on survive a facial challenge is it targeting uh an unprotected category of speech is it a fighting words uh unprotected speech category we can take disorderly conduct um subsection in disorderly conduct the ui the vermont supreme court interpreted in state v tracy again one of my cases that that just targeted fighting words an un along historically recognized category of unprotected speech very narrowly defined it's very difficult to find what what kind of speech falls within there but it is there now what we have overlaying that is this rav versus city of st paul us supreme court decision 1992 and there they there they've reviewed a wisconsin um i'm sorry it was st paul so it's city of st paul it was they were reviewing fighting words and the and the law that selectively punish particular types particularly types and ideas of fighting words and the us supreme court made clear that when you selectively punish based on the content of within a category of unprotected speech the first amendment is implicated again and prohibits that so it's not a free zone to just um legislate freely within the categories of unprotected speech is what i'm trying to say and so that's where we're at with this situation which is the hate crime statute and sentencing enhancement statute captures uh speech crimes which assuming they survive a first amendment challenge there right then we have this the second part of that which is that now if it was content neutral in the first place assuming it was but maybe it wasn't you've got now very content based uh selection of why this particular speech crime is being subject to a sentencing enhancement that implicates the first amendment so oh can i follow up just follow up so if if the um if our enhanced um penalty for hate crime was limited to physical confrontations would is that something you would also oppose or um not have an opinion on or but it's mainly the speech issue that you're concerned about is that right and and any mens rea the lack of mens rea and and and the fact that this isn't limited to um physical conduct and again taking a look at title 18 usc section 249 the federal counterpart to it uh where the committee discussions when they were talking about that raised these exact concerns in terms of if they didn't anger it to uh physical conduct and um intent that the that the first amendment issues would be there but but certainly you know what if those changes happened uh would we still oppose this bill and and and again yes this is a sentencing enhancement statute that doesn't serve to effectively deter future hate crimes based on what we know on studies of lengthier imprisonment i understand the instinct to act harshly here in terms of us a position of not tolerating great racism absolutely it is intolerable and i and i don't mean to reduce this to just racism i understand that this hate crime statute is much broader obviously beyond race uh but there is no room to tolerate hate this statute doesn't deter that those future hate crimes from happening thank you thank you um i was struck i drove down to towns and master awake on monday and i was struck by a house that had an american flag a confederate flag a trump flag and a don't tread on me flag others that may be repugnant to me it may have troubled me to see that obviously i saw it both ways and i'm going i'm wondered about the resident of that home but if that person continually harasses an individual a person of color lives there and continually harasses them continually does things that basically drives them out of town isn't there some recourse shouldn't there be excuse me i shouldn't say is shouldn't there be some recourse for that individual who has been now armed by that person hasn't been struck hasn't been um assaulted but i guess that's my question um if you're is there recourse i think that that if it falls within a criminal code there is the criminal consequences recourse and and the prosecution can can charge accordingly uh i think that there are certainly harassment related types of crimes on the books right now i mean there is there is the speech crime uh statue are just referenced and so it is not about the non-existence of a current crime there is no there isn't an insufficient number of crimes available because i guess what i'm saying again here the issues about sentencing enhancement what you are are pointing to in terms of the particular circumstances involved again judge is free and and and will sentence up accordingly if presented with the proper information supporting and then the other one supports such a sentence so i i do think the current system is is set up to already address an economy of this it is it is not an issue of whether or not uh not passing this bill is about not recognizing that there needs to be changed this is just looking at what is what is being done here right trying to make it easier to impose uh longer prison and prison sentences is just not going to achieve deterrence of future hate crimes and i think that's what is the hard reality and i think that effort should be considered and looked looked at elsewhere in terms of how to address systemic racism racism in individual cases uh or other bigoted hateful incidents i'm going to mute myself for the telephone ringing another that's unfortunate that my registration soon running my warrant soon running out and they're not going to call again i missed the call um is there any other questions for rebecca thank you very much john campbell um and we're going to stop at 1115 so that we can take up the one time appropriations hopefully we'll get the aclu thank you mr chair i'll be i'll be very brief because i know time is short and i just got that same phone call by the way even though i have a new car but um we'll talk about that well you're not going to get called again i know i'm really upset about that um you know the one thing i just must say what what rebecca said and just said and i really kind of agree with her as far as a deterrent effect you know we in this country we we got to wake up we've got to decide if we can you know or realize that you know if we're going to do it as a as a race and as a as a country um you know we have to learn how to live together to get along and um you know the continuation of what you were just explaining this like noxious and insensitive behavior like having those Confederate flags flying out there you know the and it actually goes to this is that this this type of of these laws is that you know that by itself is not is not a crime unless there's something specific to that town but ordinance but it's not a crime but if that person you know commits a battery on somebody you know that those flags and his or her uh being part of organizations or their speech that helps to show the motivation um and whether it was in fact uh supported by you know the crime was motivated by that bias so again i don't want to take time so with david i agree with david chair's testimony today i do believe also that it would be beneficial to have that the language changed with the whole in part i think it it uh it clarifies that i think it would make it a lot easier for for us for the prosecutors to to handle these cases so i i will leave it at that unless there are any questions i i do want to make clear when i mentioned the house with the flag and with the four flags and was not um um and that person has committed no crime to have a right to their views and their speech while it might be reported to me it is when that person goes a step further and continually harasses somebody to drive in a book based upon their gender national or you ancestry etc and that's important because i think that's really what we have to understand here this is an enhancement to the crime so the underlying crime has to be committed and um and proven and once that's proven if we can show they that it was motivated but motivated by this bias then you you can go for the enhancement there so and i and we are uh i think there are other states that have similar provisions in their statute so i i believe this would would survive a constitutional challenge senator white did you have a question for john for john um so um you said that it would make it easier to prosecute but it doesn't make it easier to prosecute because you have to when you prosecute you have to you have to prove it one way or the other this this says once once the person is found guilty then you can add an extra sentence on them but it doesn't have anything to do with the prosecution am i wrong no you're not wrong i i i'm talking about the motivation the enhancement aspect of that but that doesn't affect the prosecution you can't bring that well but it's how you prove that right but wait so do you use it in the prosecution also or do you use it in the sentencing the as far as let me be clear because i'm confused now what which one are we talking about well if you in order to prove that a crime has been committed you have you have to prove that a crime has been committed whatever that crime is if it's a um unprotected speech like disorderly conduct or if it's beating up on somebody you have to prove that that um happened and is part of your proof that it was motivated by hate or do you have to prove it on its own and then when it comes to sentencing you say but it was motivated by hate so we can add have an additional sentence that's the question it's the additional sentence where the enhancement is when you make the argument that it was motivated by this this hate or bias you know toward the and then go through the different categories okay but that it doesn't have anything to do with the prosecution itself no not no not for the underlying crime thank you david did you want to comment just to that point directly i if i understand the question correctly i wanted to clarify one piece which is that a uh allegations that if proven would bring a sentence above the statutory maximum for the underlying offense do need to be taken to a jury a judge can't find those independently if you are going to punish somebody beyond the statutory maximum for the underlying offense so i do believe that you know 13 vsa 14 55 is going it does have to go in front of a jury to be proven uh because if it didn't and you tried to sentence somebody beyond the statutory maximum of the underlying crime that would be unconstitutional i think it's the apprendy case is the u.s supreme court case uh so hopefully that provides clarification if i understood your question i think it does you have to say you have to bring it up you have to bring up the motivation during the trial itself during the prosecution itself in order to prove that there should be an enhanced penalty um rebecca turner would you like to comment it's uh think of it as the the trial guilt phase and the process the burden on the prosecution is the same regardless only when you get to a guilty verdict you move to sentencing what attorneys share is saying is that then on the separate point that elevates this for an enhanced sentence a jury would have to be brought in but that's a sentencing stage of it so you so senator weight my understanding of your questions you you are correct that this change will not result in making prosecutions for the underlying criminal offense any easier that will remain unchanged it is about making it easier to get an enhanced sentence at the sentencing stage okay got it thank you okay thank you we've got about five minutes left um and i don't want to rush um out those testimony i'd be happy to come back at another time if that's what works for the committee i think that's probably the best course of action today uh we will take this bill up next week sometime if there isn't next week and by that i mean for the legislative committees still haven't heard i believe that we will have it i'm still waiting for confirmation unless we've got to schedule later to see Peggy do we have oh 10 15 on Friday we'll take this up again yep i was just going to say we have a little bit of time yeah 10 15 on Friday okay happy to see you all then okay great thank you um we you don't need to go off you too Peggy but we'll take a three minute break uh work we want to go off again i don't know how hard that is we're going to take it off better not to take chances okay but we're going to take a three minute break be back at 10 15