Some groups are clamoring for prosecutors to apply a controversial new law to a spate of massage parlor shootings, but others are not convinced that the law applies.
21-year-old Robert Long allegedly killed eight mostly Asian people at two Atlanta-area massage parlors. Long claimed the attacks were not racially motivated. Cherokee County District Attorney Shannon Wallace, who said she was “acutely aware of the feelings of terror being experienced in the Asian-American community,” indicated her office might try to apply the new enhancement, which has not been tested in court. State legislators from both sides of the aisle expressed similar sentiments. State Rep. Chuck Efstration (R-Gwinnett County) said it was “important that the law calls things what they are.” State Sen. Michelle Au (D-Johns Creek) urged prosecutors to more aggressively go after criminals who targeted Asians.
Georgia State University law professor Tanya Washington disagreed. She characterized the offense as “a sex crime hate crime where the victims happen to be Asian.”
The Hate Crime Enhancement
The Peachtree State was one of the last states to pass a hate crime law. Actually, lawmakers tried to pass such a law once before, but in 2004, the state Supreme Court ruled that it was unconstitutionally vague. House Bill 426 is technically a sentence enhancement provision. There is no such thing as a “hate crime” in Georgia or most other states. Instead, Georgia’s sentence enhancement applies to some misdemeanors and all felonies. Judges may add an extra twelve months to a misdemeanor sentence, or twenty-four months to a felony, if the court finds that the defendant intentionally targeted the alleged victim because of the person’s actual or perceived:
- Ethnicity
- Religious preference
- National origin
- Gender
In Georgia, as in most other states, “hate” is not an element of the hate crime law. In fact, the law does not even mention bias, malice, or any other such mental state.
As a result, the hate crime enhancement could apply to almost anything. If a mugger targets women because he believes women are weak, the mugger could be charged with a hate crime.
If you think this situation is just a theoretical possibility which never happens in the real world, think again. Some prosecutors use hate crime enhancements in elder financial abuse cases. According to this line of thinking, these fraudsters target older people because they are easy to scam. Therefore, the hate crime enhancement provision could apply. This attitude is especially prevalent in places like Georgia, where elder financial abuse laws are rather weak.
There are some indirect effects as well. A hate crime enhancement, especially for something like an assault, looks a lot worse on your permanent record. Some people, such as actor Mark Wahlberg, are able to overcome hate crime convictions and have successful careers. But then again, there’s only one Marky Mark.
Furthermore, HB 426 includes a mandatory reporting provision. Hate crime data goes into an additional database. An arrest, as opposed to a conviction, triggers this reporting requirement.
Beating the Hate Crime Enhancement in Court
As mentioned, the Georgia Supreme Court invalidated the first hate crime law because it was unconstitutionally vague. Usually, laws are unconstitutionally vague if defendants cannot understand the basis of the charges or prosecutors could apply the law in unintended ways. So, although HB 426 is a much cleaner hate crime law, there are still some vagueness elements. That may be the unstated reason not everyone wants to go full speed ahead with this law. Additionally, not all the victims were nonwhite. That fact undercuts the argument that long targeted Asian people.
Other than the vagueness problem, the hate crime law is fairly airtight. So, the most effective defense might be to attack the underlying offense. The three misdemeanors the enhancement applies to are:
- Battery: Domestic battery could obviously involve the hate crime enhancement. In other battery cases, prosecutors must probably establish that the defendant specifically targeted the alleged victim (g. several white people walked down the alley before the defendant assaulted a black person) or the defendant used ethnic or other slurs during the assault.
- Criminal Trespass: The hate crime enhancement could apply if the defendant vandalized or broke into a store owned by someone who is in a protected class. Most likely, prosecutors must establish that the defendant knew who owned the business and knew that person was in a protected class.
- Theft: Roughly the same hate crime principles apply to theft cases. Furthermore, theft prosecutions, like most criminal trespass prosecutions, require the alleged victim’s testimony. Since many months could pass between the arrest date and the trial date, such testimony is often unavailable.
Battery and theft could be felonies as well. The state usually presses aggravated assault charges if the alleged victim sustained a serious injury or the defendant used a dangerous weapon. Pretty much anything you can hold in your hand that’s bigger than a safety pin could be a dangerous weapon. Similarly, the state usually presses felony theft charges if the stolen property was worth more than $1,500.
The state must prove every allegation in the underlying offense and the hate crime enhancement beyond any reasonable doubt. That’s the highest standard of proof in the law. So, even if the defendant is morally guilty, there might not be enough evidence to establish legal guilt. That’s especially true if a Marietta criminal defense attorney can exclude illegally obtained evidence.
Resolving Hate Crime Cases
Most criminal cases in general, and most hate crimes cases in particular, settle out of court. The further prosecutors reach, the weaker the evidence becomes. In criminal court, this overreach is a serious problem for prosecutors, because of the aforementioned high burden of proof.
The problem is that, in many cases, a hate crime is a political hot button. Many prosecutors are not willing to offer favorable deals in these situations.
Nevertheless, some resolutions are available which keep the conviction off the defendant’s permanent record. That could be true even in assault and other violent crime cases.
If a Marietta criminal defense attorney convinces prosecutors to drop the hate crime enhancement, pretrial diversion might be available. If the defendant completes some basic program requirements, such as staying out of trouble for a few months, prosecutors normally dismiss the charges.
Deferred adjudication could be an option as well. The judge places the defendant on probation. If the defendant successfully completes probation, the judge dismisses the case. Note that there’s a difference between successful completion and perfect completion. The judge might dismiss the case even if there is a blemish or two on the defendant’s probation record.
A hate crime enhancement makes it more difficult, but not impossible, to successfully resolve criminal cases. For a free consultation with an experienced Marietta criminal defense attorney, contact The Phillips Law Firm, LLC. Convenient payment plans are available.
