According to the FBI, which finally released hate crime statistics for 2021, these infractions increased 22 percent in Georgia. Advocates are even more concerned about a 20 percent decline in the number of agencies that reported these incidents.
Religion, sexual orientation, and ethnicity were the most common hate crimes violations in Georgia. Anti-Defamation League Southeast Regional Director Eytan Davidson said the report was “shocking but not surprising.” As for the reporting agency decline, Rachel Carroll-Rivas with the Southern Poverty Law Center said the decrease meant the data “simply cannot be trusted.”
Officials blamed issues with a new reporting system for the decline, which is the sharpest one ever. In a statement, the FBI promised that “As more agencies transition to the NIBRS data collection with continued support from the Justice Department, hate crime statistics in coming years will provide a richer and more complete picture of hate crimes nationwide.”
The Hate Crimes Laws in Georgia
The Peach State has several hate crimes laws. Georgia is one of the few states with a hate crime reporting requirement. The law also includes two criminal laws and a criminal enhancement.
The reporting requirement is in Section 17-4-20.2. Even if they do not make arrests, law enforcement officers must submit a Bias Report if, in their opinion, “the defendant intentionally selected any victim or group of victims or any property as the object of the offense because of such victim’s or group of victims’ actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.”
As is the case with the hate crime enhancement, officers do not need evidence of bias to file a bias report. The arrest bypass is even more troubling.
Generally, officers must have reasonable suspicion, which is basically an evidence-based hunch, before they make arrests. So, to file a Bias Report, the officer must only have a hunch, at the most. The Bias Report goes into the system. As a result, these defendants effectively have arrest records, even though the officer didn’t have any evidence of wrongdoing.
One of the two hate crimes laws is Section 16-11-37. This portion of the terroristic threat law applies to any defendant who uses “a burning or flaming cross or other burning or flaming symbol or flambeau with the intent to terrorize another or another’s household.” Usually, a terroristic threat is a violent threat against a school, building, airport, or other relatively large gathering of people. This portion of the law is much more focused.
The other hate crimes law is Section 16-7-26, which prohibits vandalism against a place of worship. Usually, a place of worship is anyplace worshippers gather. A house church could be a place of worship. So could a vacant store in a mini mall that a congregation rents on certain days.
Most hate crimes actions involve Section 17-10-17, the hate crimes enhancement. It adds a maximum twelve months to a misdemeanor jail sentence and up to two years to a felony prison sentence. This enhancement applies to the same bias acts contained in the reporting requirement.
Regarding misdemeanors, this enhancement is limited to assault, battery, theft, and criminal trespass. The enhancement could apply to any felony. Several Marietta criminal defense lawyers have argued that the felony enhancement provision is unconstitutionally vague. It could apply to anything. These arguments have all fallen on deaf ears.
Most likely, lawmakers intentionally made this provision vague to give prosecutors more leverage. “Hate” is not an element of the hate crimes enhancement. If fraudsters target older adults because they believe these individuals are easier to trick, prosecutors could use the hate crimes enhancement to impose a higher sentence.
Jail Release Issues
Usually, officers file Bias Reports when they make arrests. It’s pretty easy to cut and paste information from their arrest reports into other documents. Therefore, the county pretrial release board usually has access to these reports when they decide if OR (own recognizance) release is appropriate.
Essentially, OR release makes a criminal offense a traffic ticket, at least for pretrial detention purposes. If defendants promise to appear at trial, meet some other program requirements, and go forth and sin no more, the sheriff releases them on their own recognizance. A hate crimes enhancement isn’t technically disqualifying. However, it is disqualifying, for all intents and purposes.
A hate crimes enhancement changes the severity of the offense, which means the sheriff could increase the bail amount. Frequently, a few hundred dollars means the difference between affordable and unaffordable bail amounts. At a bail reduction hearing, a Marietta criminal defense lawyer uses factors other than the severity of the offense, such as the defendant’s ability to pay bail and the defendant’s connections with the community, to lower the presumptive bail amount.
An old-time judge used to repeatedly remark that county criminal court should be called county dumb court. His observation was that most misdemeanor defendants simply made bad choices. Many people, including potential employers and landlords, share that view.
A hate crimes enhancement puts misdemeanors into a different category. Many people assume that individuals who commit hate crimes are bad people.
Criminal Law Issues
The best way to avoid these direct and collateral consequences is not to challenge the hate crime enhancement, which is almost impossible to do. Instead, a Marietta criminal defense attorney usually challenges the evidence in the underlying offense. This effort could involve a procedural or substantive challenge.
In personam (assault, theft, and other crimes against people) often involve Fifth Amendment issues. Prosecutors cannot use any evidence directly or indirectly related to a Fifth Amendment violation. If officers do not respect David’s Fifth Amendment rights and he confesses, that statement is inadmissible. Likewise, if David tells officers the location of physical evidence, and they don’t respect his rights, that physical evidence is inadmissible.
Substantive defenses are usually very effective, since the burden of proof (beyond any reasonable doubt) is so high. Frequently, defendants are morally guilty, in that they “did it.” However, in many cases, the state doesn’t have enough evidence to prove guilt in court.
A hate crimes enhancement makes serious offenses even more serious. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. We routinely handle matters in Cobb County and nearby jurisdictions.