Depending on your perspective, there was good news or bad news from the state capitol recently, as lawmakers refused to enhance criminal penalties for hate crimes.
The bill’s reference to the broad International Holocaust Remembrance Alliance (IHRA) definition of antisemitism probably killed it. Certain political and advocacy groups oppose this definition. Additionally, the Georgia Supreme Court struck down a previous hate crime enhancement because it was too broad.
Despite these issues, a reworked bill with a narrower antisemitism definition almost passed. It cleared the Senate Children and Families Committee, but the bill’s advocates simply ran out of time.
Rep. Esther Panitch, the state’s only Jewish lawmaker, said it was “devastating” to see legislators “ignore the cries of Georgia’s Jewish community for help amidst escalating antisemitism.”
Hate Crimes and Jail Release
People who allegedly commit vandalism, stalking, and other nonviolent misdemeanors are normally eligible for pretrial release. To reduce the inmate population, officials are usually willing to open the cell doors if the defendant isn’t a danger to society and promises to appear at trial and follow all other release conditions.
But a hate crime element kicks such offenses up another category. Technically, they’re still nonviolent misdemeanors. But politically, many people perceive these crimes differently. So, pretrial release is usually off the table, unless a Marietta criminal defense lawyer intervenes.
You’d be surprised how well a thoughtful apology works, especially in this context. The statement cannot be a no-pology, like I’m sorry you got mad or I’m sorry I got caught. If the pretrial review board has such an apology, that statement often knocks the alleged offense back into the normal category.
Actions speak louder than words. After pretrial release, and before the court orders the defendant to attend them, s/he should consider working at appropriate charities and donating to them. Voluntary rehabilitation makes it much easier to resolve these cases. More on that below.
Additionally, sometimes pretrial review boards need a gentle reminder that the defendant hasn’t been convicted of a hate crime. At this point, it’s a wild accusation in the National Enquirer that’s most likely false.
These appeals aren’t always successful. That’s not the end of the world, because other jail release options are usually available. They’re just more expensive.
A bail bond is the cheaper option. Bonding companies, which are like insurance companies, usually charge a 15 percent premium to issue these bonds, which are like insurance policies. If the defendant obeys all conditions, the bonding company takes its money and goes home. If the defendant doesn’t obey all conditions and a judge forfeits (cancels) the bond, the company often hires a bounty hunter to bring back the defendant.
These bounty hunters aren’t like Boba Fett. Instead, they use credit card use and other activity to locate defendants who are on the lamb, and then law enforcement moves in.
Cash bail is the more expensive option, at least upfront. The defendant pays the entire amount, which could be several thousand dollars. If the defendant toes the line until the case is resolved, the county refunds most of that money.
The Hate Crimes Enhancement
When a criminal case goes to court, the focus shifts from the individual’s ability to show up at trial and stay out of trouble to the state’s ability to prove that criminal case beyond any reasonable doubt.
According to Georgia law, the hate crime enhancement applies if the defendant targeted a victim because of that victim’s actual or perceived:
- Sexual orientation, or
Conviction of a hate crime could mean an extra six to twelve months for a designated misdemeanor, and an additional two years in prison for a designated felony.
Crime designation was an important addition to this hate crime law. The previous version didn’t have such a provision, and the Georgia Supreme Court ruled it was unconstitutionally vague.
Vagueness is normally one of the best defenses to a hate crime enhancement. The state cannot pass laws that criminalize conduct without specifying the nature of that conduct. This defense is often unavailable in Georgia, because legislators tailored the new law to meet the Supreme Court’s requirements. But a Marietta criminal defense lawyer has other options. More on that below.
Prosecutors typically use a pattern of animus on social media to prove intent. If Tom wrote, forwarded, or liked racist or other social media posts, Tom was most likely a racist. Usually, because the burden of proof is so high, prosecutors need three or more such actions within the last three or so months. Additionally, a picture of a car with a Confederate flag in the background mot likely isn’t a racist picture.
But we’re getting ahead of ourselves. The hate crime enhancement is irrelevant unless the state proves guilt of the underlying crime. We mentioned stalking and vandalism above. These two offenses typify the kinds of defenses in a criminal case.
There’s a difference between violating a protective order and stalking. Protective order violation investigations are straightforward. You aren’t supposed to be in this place, you’re here, so you have the right to remain silent. Stalking, on the other hand, usually requires proof of intent. If Harry and Sally are at the same place at the same time, that doesn’t mean Harry was following Sally, when Harry met Sally.
Incidentally, that difference is one reason why women should obtain protective orders. A protective order is a court order that police officers can easily enforce.
As for vandalism, police officers rarely catch offenders red-handed. Therefore. At trial, prosecutors must rely on circumstantial evidence. A jury could agree or disagree with the way a prosecutor puts this evidence together.
Oh, and speaking of the right to remain silent, many criminal cases have procedural defenses. Officers cannot ask suspects questions until they read them their rights. If they fail to do so, the answers to those questions are inadmissible in court. Furthermore, before they seize spray paint cans or other physical evidence, officers normally must have search warrants based on probable cause affidavits.
Hate crimes enhancements don’t always hold up in court. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Virtual, home, and jail visits are available.