 Okay, Mr. Senate Judiciary, thank you all for being back here and we're taking up 8.4.28 and act relating to hate-motivate crimes and misconduct, and our two witnesses this morning are Falco Shilling, Advocacy Director ACLU Vermont, and Arizona Davis Executive Director of Racial Equity and Chair of the Governor's Task Force on Racial Equity, the A&J administration. So Falco, if you would mind taking up your views on H.4.28. So for the record, my name is Falco Shilling. I'm the Advocacy Director for the ACLU of Vermont, and we greatly appreciate the opportunity to testify to all on this bill today. I should start off by saying that the ACLU, both here in Vermont and nationally, does support the passage of enhancements for hate-motivated crimes with the caveat that those pieces of legislation should be narrowly tailored in order to protect constitutional rights of free association speech and beliefs. So with that said, I think you all saw that we submitted a proposed amendment to the legislation that should be, I think it's posted on the committee page. And the major change that we were we are asking for is to change this from a motivation-based enhancement to a victim selection-based enhancement. And I believe you heard a little bit about this from the Attorney General's office and the Defender General's talking about the difference between the two. So the language that we're proposing would require that the person who has committed the crime before they are, given the enhancement, be shown to have intentionally selected the victim on the basis of their protected category. So the reason that we support this type of language is we feel that it draws the balance between both trying to protect people from bias-motivated crimes, and as well as protecting constitutionally protected free speech thought and association. This is more this more closely tracks the legislation that you heard about in the case Wisconsin v Mitchell. So that was a case that the Supreme Court found that their statute was in fact constitutional. And was a case where the ACLU was acting an amicus in favor of this type of legislation. This is not something that is of course a balancing test within our organization because there's a lot of things you need to consider. I mean, not just the protected activities and associations, but as you've probably heard from me in the past, we're not generally supportive of increasing prison sentences or enhancing penalties. But this is an exception to that general rule because we know that these crimes have such a debit stating impact on society. If I could just stop you for one sec. Peggy, I'm looking around on the website and I can't find the document Falco. Do you do happy to resubmit it if that's if that's helpful. When did you give this to me a couple days ago. A couple days ago. Okay, so if you go under the bill. Yeah, it would be there. It wasn't. I pick up all drafts by Bryn here. Unless the witness documents. With under witness or other documents. Let me find it. I'll tell you guys. Okay. Also send it to you again, right now. That's just a list of witnesses. Yeah, I don't, I don't see it under any of those tabs. I will send that again, right now. I, I asked because it sounds like a substantial change. So it would be a substantial change and I do recognize it. Just to be honest, this was, we presented this to the House committee and they, as you will see, did not decide to make that change. Okay. If you go to witness documents, it's right there. If you go to bill and then I went to bill, but I don't see witness documents. I see witness or other documents. Oh, yeah. Okay. Mindset witness documents and it's right there. How do you have a different website than us? Because, because I'm special. I was going to say, is it under committee activity. Also, I think just to the committee members and to. Just sent it to our email. Yes. Thank you. Oh Lord. I don't know. Thank you. I've just got it. In my email. Okay. First, no commits causes to be committed or attempts to commit any crime and intentionally selects the victim on the basis of their actual received race. So Falco, I have a question about that. If. If. So you, you'll see in the latest draft from Bryn. We were looking at language that said. Motivated in whole or in part. And this one seems to have no in part. Counter part. It's, it says that someone intentionally selects. The victim. Which seems like where we were before, which is that they maliciously do something. And it's solely because of or predominantly because of. And this draft is attempting to move away from that into a. A different. Stand here that might be met in more cases. So how would you think about that? So I think your analysis is correct that this is a more narrow standard. It's a more narrow standard. It's a more narrow standard. It's a more narrow standard. What we are proposing the intentionally select standards. It doesn't have the in whole or in part. Or the motivate. As you heard from the general general's office. That these are kind of the two ways these types of statutes have been structured. Across the nation, but it's the position of the ACLU that when drafting these types of legislation, it should be an intentionally select standard. So we would be, you know, we, I don't know if we would be able to do that either. But we are saying that if you, you know, it is the ACLU's position that if you're passing this type of legislation that we think to strike the right constitutional balance that intentionally selects would be the correct language. Can I, can I just ask one. Philosophical question about that stance from the ACLU. So the problem. As I see it that produced this draft is that existing language was not workable. It was not workable. There were a number of high profile cases where it couldn't be invoked because the standard set was so high. So I understand what you're saying that you're, you're airing on the side of protecting the civil liberties of the person accused. But how do you square that circle with. The idea that people are. In some cases running rampant with speech. Or hate motivated incidents. And the argument would be, and for that reason, we need to move to a standard that, that is more workable in more situations. The criticism I think of the ACLU position might be that it's, it's a little inflexible in light of. Where we've been in terms of these cases. And how would you answer that? Well, I guess one thing I would say is that speech that we find distasteful and awful and abhorrent is still constitutionally protected. And that is one of the things that we are looking at and trying to strike this balance as we're. One of the reasons that we are, we are saying that it should be an intentionally select standards because a lower standard could cause a court to engage in an inquiry into the crime itself. And that would lead to a constitutionally protected activities such as that, that could lead to show that there is a presence of hate that someone might be a hateful person, but would then be going into their constantly constitutionally protected speech and association, which are not directly related to the crime itself. So that is where we try and draw that balance is that, that the information of these constitutionally protected speech and association that we find in the crime itself. And that is that person's intentional selection of a victim based on those protected characteristics, which should trigger this type of enhanced penalty. Because as the ACLU, we also, as I said before, don't take the idea of enhanced penalties lightly. We know that increased prison sentences is one of the largest drivers of mass incarceration in this country. That balance with the fact that these are not crimes that are committed by the ACLU, and that we think it would in fact drive mass incarceration, but that's another balance. We have to take into effect that further criminalization and further punitive penalization of activities, as you've heard, doesn't have the deterrent effect that we might want it to have. But that by trying to, so I fully acknowledge that I see where this bill is trying to go. Then that is not in line with our proposal, but we were asked to submit where the ACLU stands on this, and we'll just sit there and talk, and then we'll go back and have a little chat, and then we'll go back to the commission. And then we'll have a little conversation. And we'll have a little conversation and want to share our thoughts with the committee. Thank you. Appreciate that. I just. Comment that, you know, what we've seen nationwide and. Some extent in Vermont. Is where. The hate crime, or the hate, the actual acts. Yeah. Not only terrorizes that individual who's having. So in many cases, terrorizes communities. I mean, Asian hate crime against Asian Americans right now, the proliferation of those activities. Maybe that one person who's assaulted, you feel really bad for that person. But what about all the other folks who are in that community who are also terrorized just based upon their race, ethnicity, whatever, gender identity, blah, blah, blah. Those are also terrorized. I think that's one of the considerations we also have to have here. And I think, I mean, I would agree that as a consideration, we have to take into account in that scenario where someone is intentionally selecting someone and committing a crime against that person because of their protected identity. That is a situation we do think it's completely appropriate for this enhancement to apply. So I think that's where we've tried to draw the balance. Another issue that I do want to just raise quickly is the fact that sometimes these types of laws, though with the best intentions can be used to target people who might already be disenfranchised or disproportionately impacted by the criminal legal system. So that is why we would support having some sort of tracking. If this bill moves forward, tracking how often these types of enhancements are used here in Vermont in particular, whether that's done in this piece of legislation or in another piece of legislation you're considering such as 317 or S108. We do think it's important to be able to track that and make sure that when we are creating new enhancements or new crimes that they're not disproportionately impacting in particular people of color and others who have already been disproportionately impacted by our criminal legal system. Okay. Other questions? Thank you very much. Thank you very much. Zana Davis, thank you for being with us again today and appreciate it. Your thoughts on H428 would be appreciated by the committee. Thank you. I wanna see if everyone, Zana Davis Racial Equity Director for the state. I don't have a whole lot to add actually. I think that Falka did a great job of summarizing some of the benefits and the pitfall of what we could potentially see with the proposed legislation. In the house, I did testify in support of the bill as it was introduced. The Racial Equity Task Force this past January did issue a report to the governor recommending that the state reduce the malicious motivation standard precisely for this reason and precisely as a way to combat a lot of the hate-motivated incidents that happened in the state, particularly because a lot of them do center on issues of speech and other constitutive conduct. So one of the things that we were explicitly asked to look at by the governor was how the state can strengthen its laws to protect members of historically marginalized communities or often targeted communities. For that reason, the task force did make a recommendation to reduce that standard, taking into account the testimony that had been given by numerous other entities, including the Defender General's Office, the ACLU, the HRC and others, and taking into account the proposed amendment by the ACLU. I would say that I would support the bill either in its current form or perhaps especially with the proposed amendment because it does, again, allow us not only to address the... Sorry, I saw you all look up. I didn't freeze. I was looking for the word. It does allow us to address conduct more adeptly than we have been, but also ensures that we don't overstep on constitutionally protected behavior. I am somebody who tends to favor less government intervention and less criminalization of things. And so with racial equity work, I find that it's a strange balance between how do we offer more protections for people who are being repeatedly and egregiously victimized without also trampling on civil liberties? It's a difficult balance. And I think that the proposed amendment could help us to strike it better. I see the senator has a question. Mr. Chair. Yes, Senator Burr. Suzanne, I just wanna make clear which amendment you're referring to. When you say the proposed amendment, do you mean the one that Bryn redrafted for us or the one proposed by Falco Schilling in the ACLU? Oh, I apologize. I meant the one that was proposed by ACLU. Okay, well, that surprises me because it's one of the functions of the bill, as I saw it, was to create a more workable standard to allow us to successfully prosecute more hate crimes. As I see it, the ACLU amendment would keep us at a standard that would be equivalent to the one we have now in terms of how difficult it is to meet. So that wouldn't get us anywhere, I don't think in terms of additional prosecutions or the possibility of additional prosecutions. So you believe the constitutional issues are strong enough to stay at the standard we're at. I am always hesitant to come close to confront the constitutional right. So I always hesitate in those circumstances. And again, I think even without the ACLU's amendment, I would and I think the task force especially would support the bill. It's certainly a goal for us to be able to prosecute more hate crimes. Say in fact hate crimes and yeah, that is certainly a goal. And then another goal that unfortunately sometimes feels like a competing goal is just making sure that we're not overreaching and coming too close to those constitutional issues. I don't pretend to have the answers, but I do think that the options currently on the table would both help us get a little bit closer to that. Okay, thank you. Senator White. Thanks, Susanna. I really appreciate that. I actually do like the ACLU amendment because I think it specifically points out that the person is selected for the crime because of whatever the characteristic is and that actually seems to me to be easier to prosecute than just being able to say it was partially motivated by hate. So I appreciate you're weighing in on that. Thank you. You know, I suppose another issue here is I respect this conversation because it's an important one and yet it's one of many that we have to be happy around this, right? Enhancing having a hate crimes enhancement or enhancing our hate crimes enhancement is not necessarily going to curb racist behavior, right? Being a racist is not a crime. Being a jerk is a crime, right? Not to equate those things, just saying. But when we're talking about increasing penalties for criminal activity, when there's an underlying unlawful conduct, yes, we could make it easier to say you've selected a victim or you were motivated by the victim's identity or membership in a protected category and therefore the punishment is going to be worse for you. But that's not really getting at the actual motivations, the social and political issues that lead people to do these things in the first place. And so I think this conversation is extremely necessary and worthwhile. And I just caution us to remind ourselves that we're not gonna do all of the work through hate crime enhancement. This is one of the many things that we're gonna have to do. So it's gonna take a lot more. It's gonna take some updates to the way that we police and investigate things. It's gonna take updates to the way that we teach people. What are we doing in schools to make it so that young people don't end up being flooded with hateful ideology and surrounded with that messaging which later leads to certain criminality, et cetera. So I think this is one of many factors and I don't necessarily want us to go too far in one sector thinking that we'll solve the whole problem because it's a multi-faceted problem. I don't know if that comment helps or if it's more confusing. It is helpful to me. It is. I'm just under Baruch. Go ahead. I was just gonna say that I don't think any version of any bill solves all of the problems. But I'm mindful of the Kaia Morris situation where the community in general, the state in general, I think the nation in general was outraged at the behavior that was allowable under the law. And there were reviews, several reviews by the Attorney General and others to try to determine there was latitude in the law and it was declared that there wasn't. And I think that's the worst possible scenario is that our legal system investigates the law and says, no, nothing can be done about this. That sends the message that go ahead and do this because there's nothing that can be done. I have had people write me on another issue that people are passionate about. I've had them write me letters that were extremely insulting and then cite the case law to me about why they can do that. And that I have no recourse for them calling me these names. So, when I saw this bill originally, I thought I was delighted that it was gonna go to a less exacting standard because trying to prove that somebody is entirely motivated or that trying to prove intention, you'd need to prove, it would be very difficult to prove that somebody intentionally targeted someone for their race in in total, it's easier to think about doing it in part where you have some evidence that they had an anger toward this group and then you have their crime. That seems to me to be enough. But I take your points. I would just note that as Falco said, they presented those in the house and they were not persuasive there. And I think that's because they were trying to strike a new balance. But I hear you in terms of your comfort zone and wanting not to reach too far. Oh, I'm sorry, Senator White, do you have a question? No, I was just going to ask that our intention is not to vote this out today, right? I would like to make sure Joe is part of this conversation. Oh yeah, no, my intention is to next Wednesday. Oh, okay. But I was going to ask the question is about the word intentionally selects. That seems to be what we're talking about. That seems like we've meditated. Yeah, how do we, let's take the Asian-American woman who was assaulted and I can't remember what state she was in, she was in her sixties, I believe. How do one prove that that was an intentional act of selecting that Asian-American woman? So for the, sorry. Yeah, go ahead. So for the record, Bryn here for legislative council. And yes, the way I read that amendment language from the ACLU is to include an additional element of intentional selection of the victim. So I do think that would be a change from the current standard of motivated by. So is your question, I think it's an element that the prosecutor would have to prove that that person intentionally selected their victim based on their protected category. And under our draft 2.1, that wouldn't be necessary to prove they intended intentionally selected that. I think that the motivated by a standard is I think a little less exacting than the intentional selection standard, yes. So Bryn, are you saying then that the ACLU's language would actually make it harder than current law to prosecute? Yes, I think so. I haven't done any significant research since I have just looked at it this morning, but I think that it would be a more exacting standard and it would be more difficult to successfully have an enhanced penalty with that intentional selection language. I believe so, yes. Thanks. Rebecca Turner wanted to comment, but really our witnesses really is on a date but I'm happy to let you, thank you. Thank you, thank you, Senator Sears. I'm sorry, I can wait to later. No, I didn't, I just wanted to make sure that Zana had anything she wanted to comment on. No, I mean, I would just, I'm pretty much done and I would reiterate, I think the example that Senator Baruth gave about that particular case and how egregiously unjust it seemed to people around the country, the result of that and the fact that- No, I just wanted to make sure- I think we have so many cases like those that never make headlines, that end up having equally unjust and sometimes life-threatening results is exactly why I think the bill was proposed in the first place. And then I guess I just would reiterate that again, the task force, the racial equity office would support the bill in either of its versions here because a goal for our group is enhancing protections for people who are victimized by hate crimes. So I think either way that you move forward will probably be good in the sense that we will have amended the malicious motivation standard. And I guess the question is, how far are we dropping or how much more are we enabling ourselves to be able to handle these cases? But I would, again, I think if we were to go with the draft without having to prove intentionality that we would also be positioning ourselves for that enhanced protection for people. So that's it, that's all I got. Thank you. Rebecca, did you wanna comment and then Julio? Thank you, Senator Sears. Rebecca Turner, Head of the Appellate Division, Office of the Defender General for the record. I, listening to the testimony and the back and forth this morning, I just wanted to point out about being careful of our use of language. I understand that it's been characterized that not the ACLU's version, but that the version that is presented this morning and from the house, it's been described as establishing a less exacting standard in terms of an element. It's been described as making prosecutions of hate crimes easier. I wanna make sure the committee understands the ability to prosecute crimes is a separate question. And that remains the same, regardless of the changes proposed here this morning, either from the ACLU or the latest draft. So I just wanna make sure that's understood. It is not going to make prosecutions of crimes easier. What is proposed here is to make the imposition of sentences to imprisonment, longer sentences to imprisonment easier. So then the question is if the motivation is to protect, communities who have been traditionally marginalized to avoid future crimes as the ACLU witness, Felco Shilin testified, we know that length theory sentences not only just drives the mass incarceration problem nationally, but also does not deter. Therefore, if it doesn't deter future hate crimes, oh, I've lost it, can you see me or hear me? We can see you. We can hear you clearly and see you. Oh, good, good, good. My computer then is, I can't see you. Oh, here you go. That that is not in terms of the purpose being served by making this easier, it's about easier to impose a longer sentence to imprisonment. So it doesn't go to the question of can you more easily prosecute crimes because the crimes remain unchanged and the elements that have to be proven by the prosecution remains unchanged. Just wanna make sure that's clear, thank you. I think it is, but thank you for the reminder. Julio. Yeah, thank you, Senator. I think I wanna add, I'm trying to get my video again to work today. I think this Friday that our video and our computer equipment just gets tired and needs a break and... Gremlins. We've had more trouble with technical problems today. So I just think it's that all the equipment has had enough for the week and they're ready to go. So good morning, Julio Thompson, Attorney General's Office Director, Civil Rights Unit, our civil rights unit enforces the civil provisions of the hate crimes law which is implicated by this bill and hasn't been discussed. I'd like to talk about that a little bit as well as I teach the hate crimes class for the Vermont Police Academy. So every law enforcement officer who's become certified in the last 10 years has gone through the class that I teach along with the U.S. Attorney's Office and Amy Farr, our victim's advocate. There are a number of misconceptions here. I think I think that we need to clear up. Some of them I think have already been mentioned by Senator Brewer. So I apologize for repeating them. But one is that this notion that there's something spurious or problematic about government laws sanctioning people based on their motivation. I think if we think about Title VII and the Civil Rights Act, one of our most celebrated civil rights laws, that is based upon language that we're looking to add to this hate crimes bill, which is that you can't discriminate it against somebody because of their sex. It is necessary under our longstanding civil rights laws to show intentionality, intentional discrimination. And it doesn't have to be limited to selecting victims in the workplace to discriminate it against. It can be somebody who is even acting out of goodwill, but maybe in some misguided notion that let's say historically that women don't belong in dangerous applications. They don't have to be malicious. You don't have to target women as victims. If you just have this bias and you act upon the bias, it's prescribed by the Civil Rights Act. Think about equal protection under the Constitution. In order to show a violation of a constitutional right for racial profiling, you have to show intentional bias by the officer. It's not an accident if it's negligent. It doesn't violate the Constitution. But longstanding precedent looks at, if it looks at motivation as part of the element of the offense. Here, the hate crimes law as it exists doesn't go that far. You don't have to prove hate motivation for the underlying conviction as Rebecca just said from the Defender General's office. So where this the sentence enhancement only comes into play after the conduct and question has been established as a crime. The Supreme Court has in one case that addressed the constitutionality of hate crime statutes, Wisconsin versus Metro. There's no constitutional expressive interest in committing crimes. So it has to do with the penalty that's applied. There's no question that a victim selection statute is narrower than existing law because it doesn't take into account a category of hate crime offenders that's been recognized in the literature and in cases that have been prosecuted in the country, which is called the reactive offender where there is some underlying conflict and the identity of the one party, the victim in the crime, in the conflict is of a particular race or religion. And then that escalates the criminal defendants behavior. It is true there are categories of cases where bad people will look for victims and the current law covers that. But there are also cases where people will commit crimes against someone because of several reasons. It could be something for example, where patrons are in a bar and a bouncer or a security guard tells someone not to be unruly and then the person turns around and sees that part, that bartender, that bouncer or security guard is an African American and that person may feel like particularly agree that a person of that race is telling them what to do and then it escalates. I doubt very much, it would be harder for a prosecutor to show that that was a victim selection case rather than a case where someone was motivated to violence in part because of the underlying conflict with the guard but escalated by the fact that the crime victim's race was a factor. So it's troubling to us that a bill that came from a committee to include greater protections of marginalized communities would end up being narrower narrower than the law that we have. The other implication is it's not just sentencing because this definition of hate crime carries over to the civil statutes that cover hate crimes. So if someone is injured as a result of a hate crime, the Vermont law currently gives them the right to go to civil court, even if there's no prosecution and obtain remedies for those damages, including economic losses if a person loses their job, they have to relocate, they suffer physical injuries and the like. And so what a consequence of narrowing the definition of hate crimes isn't just about whether you're putting people in jail, it's also about reducing the range of remedies for victims of crimes. It also narrows our ability in the office to get an injunction to keep a perpetrator away from the victim. So this definition plays into both the criminal side as well as the civil side. So from our viewpoint, the ACLU amendment is a walk back. I think it is, it's narrower. Mix motivation statutes have upheld constitutional challenges for a long time. California has had a mixed motive hate crime statute since 2004. There's an ACLU in California, trust me. And for nearly 20 years, that statute has upheld as have other state statutes that recognize mixed motives been upheld because principally, there's no constitutional interest in committing a crime. Senator Sears, you indicated that hate crimes have this multiplier effect. That is indeed one of the reasons the US Supreme Court said that it's rational to have an enhanced penalty. Another one is that hate crimes can create conflict in the community, can create an environment where there's retaliation or a vigilantism in response to it, and that that warrants higher attention. The Vermont Supreme Court has encountered challenges from the defender general's office and from other defendants to the existing hate crimes statute. And the Supreme Court has repeatedly declined to find that it's unconstitutional. This law has been around for a long time and the Supreme Court has had multiple opportunities to find that it's unconstitutional and hasn't done so. In the most recent case that I was involved and at least I briefed, it was a 2010 case in which there was a challenge to a hate crimes injunction. That was a civil injunction to keep the defendant away from the victim and his family who in a prior case, the Supreme Court said had undergone a campaign of terror. The Supreme Court said in this case which is called shaheen versus madden. Quote, Vermont's hate crimes law has faced a constitutional challenge in the past. And here again, we find no fatal infirmity with the statutory structure on the grounds appellant set forth. In that particular case, they were questioning whether you could have a civil remedy for a hate crime using the preponderance of the evidence standard rather than reasonable doubt standard. Whenever there's a challenge to the constitutionality of a state law, the Supreme Court notifies our office and then we have the opportunity to defend the legislation that the state has passed. And so we submitted a brief to spending the constitutionality of this law and the Supreme Court declined to find that it was that there was any problem. So this, I don't think this is really uncertain untread territory, but so I, and I think that the reality in cases that we encounter whose people report hate crimes to us is that the motives for conflict are often multiple. But where there's a bias element and that's a substantial motivating factor to show that it was you were acting particularly maliciously, which is a higher standard that you were somehow picking out somebody that there was some, it sort of implies that there was a plan rather than acting in the moment, which is what many crimes, especially crimes of violence occur. Thank you very much, Julio. I appreciate it. Next Wednesday, we're gonna come back to this and do Mark up on the bill. I think obviously looking at both the draft 2.1 that's on our website, the print drafted as well as the ACLU draft and obviously the original bill. And I appreciate your testimony. It cleared a lot for me up. And unfortunately, we have a toll from toll free call. I bet that's a robo call. If the house would get off there, Duff and pass the robo call bill, it might help me. I think Duff is a proper word. Duff is fine. I was about to use something else, but... We know. All right. Thank you, Bryn and Julio and Uzana and Rebecca. Thank you for being here. I'll go for being here.