With renewed interest to pass a hate crimes law, lawmakers urgently claim pending Georgia House Bill 426, the Georgia Hate Crimes Act, would fill the void. The Peach State’s former hate crime statute was struck down in 2004, leaving Georgia one of few remaining states with no operational hate crime law. Regrettably, what proponents claim HB 426 would actually accomplish, if passed, remains murky at best.
Could HB 426 become a vehicle through which hate crimes and hate crimes groups are prosecuted for deranged, ruthless, and malignant offenses against humanity? Rather than argue for or against HB 426, or hate crimes laws in general, this essay will review the proposal’s terms. The analysis will reveal that HB 426 is far from an actual hate crimes law and by no means embodies what its proponents submit it accomplishes.
When people hear “law,” in the criminal context, they expect an offense that can be investigated, charged, and convicted. HB 426 is placed in Title 17 of Georgia’s legal code, where criminal procedure is housed– not criminal law. Title 16, on the other hand, houses the state’s crimes and offenses– which are actually prosecuted. This illustrates that HB 426 is a procedural tool, not a prosecutable law. The bill’s proponents, however, think differently.
Because HB 426 does not constitute a criminal offense, it is not and cannot be a true hate crimes statute. Instead, HB 426 is a “sentence enhancer” that would increase punishment once someone was convicted of another crime. Even at that, HB 426 is weak. As currently proposed, the bill adds a maximum of only one (for misdemeanors) or minimum of two (for felonies) additional year(s) and a $5,000 fine to any crime of which the underlying motivation was rooted in certain racial or other types of animus, prejudice or bias of the defendant.
HB 426, then, never addresses any measure that would make it an actual vehicle for hate crime prosecutions. It does not prohibit any specific conduct, yet its proponents think it does; it merely waits for the sentencing phase and assumes the prosecutor will proffer the requisite proof, whatever that might be. This creates a great divide between what HB 426’s proponents claim and the bill’s actual terms.
Furthermore, none of the qualities of a law designed to prosecute hate crimes, much less stopping and dismantling hate-crimes groups are present. Namely:
● Investigative Authority: Could the Georgia Bureau of Investigation independently investigate suspected hate crimes under HB 426 or would GBI have to wait to be asked by locals? The current text does not address this.
● Prosecutorial Authority: Would local district attorneys be the only ones to prosecute under HB 426, or could Georgia’s Attorney General’s Office do so and without a DA asking? This is not mentioned either way in HB 426.
● Venue: If hate crimes are committed in a multi-county spree or hate groups victimize innocents in multiple jurisdictions, which has been done in Georgia, could the case be brought in one single county? HB 426 remains silent.
● Bond Hearings: Would hate-crimes infractions need to go before a Superior Court judge for the issue of pre-trial release or could lower courts consider bail? HB 426 says nothing on the issue.
● Evidence Rules: Where certain misconduct is particularly virulent, specialized evidence statutes often ease normal restrictions and allow the admission of similar misconduct. Evidence governs all aspects of what information the trier of fact receives and how it is considered. HB 426 takes none of this into account.
● Statute of Limitations: How much time could pass before charges under HB 426 are time-barred? No statute of limitations is listed in current HB 426.
● Non-Merger Provisions: Could multiple violations of HB 426 get stacked against guilty defendants for consecutive sentencing or would infractions merge into each other for only one year? HB 426 offers not a word.
● Civil Remedies: Could victims and their families sue for damages against those who victimized them or their families with hate crimes? What about those who just stood by while atrocities occurred? HB 426 is silent.
HB 426 nosedives as a hate crimes law when its terms are fully exposed. The public should be outraged by anyone in politics or the media supporting this as an effective vehicle for hate crime prosecutions, since there wouldn’t be a single one, even if passed.
Law Enforcement Today reports on the conviction of a quadruple murderer who targeted his four homicide victims on the basis of their race. The convicted killer had also admitted to joining a gang at 9 years old. In a jurisdiction that has both, it appears that neither gang statutes nor hate crimes statutes were utilized. Also, InsiderAdvantage similarly reports that Georgia’s anti-gang laws are barely used.
Neither situation is acceptable, yet Georgia is headed there shortly. Even if signed into the books HB 426, as currently drafted, fails. If passed, HB 426 is too weak and riddled to have a significant impact on hate crimes or the evil individuals who commit them. Sponsors and supporters of HB 426 should come forward and explain why they insist on calling a sentence enhancement a valid “hate crimes law.”
If proponents do not, then their motives will continue to remain suspect, all while true supporters of hate crimes laws and the victims who need their protections—like gang crime victims— will continue to be endangered by politics as usual. And until then, HB 426 won’t pass go and won’t collect its $5,000.
Bill Black is a Georgia attorney who graduated with honors from Atlanta’s John Marshall Law School where he was Editor-in-Chief of the John Marshall Law Journal.
