INDIANAPOLIS – Republicans looking for an easy out on hate crimes got some bad news last week.
Passing a bias crime law without an explicit list of designated characteristics is not going to get Indiana off the so-called naughty list.
Indiana is one of five states without an explicit hate crimes statute – alongside Wyoming, Arkansas, Georgia and South Carolina. That distinction is creating challenges for companies statewide struggling to attract diverse talent and fill jobs at a time with record-low unemployment.
So, the stated goal by Gov. Eric Holcomb and others this year is to pass a law that makes Indiana the 46th state with a bias crime law.
But the Anti-Defamation League – the keepers of a state map that tracks these laws – says the path Indiana is heading down won't suffice.
That's because Senate Republicans stripped the bill of a list of protected classes such as race, religion, sexual orientation and more. Instead, it simply says a judge can consider bias of any kind.
Anti-Defamation League Midwest Regional Director Lonnie Nasatir said the organization modeled the first hate crimes statute and has a long history of advocating nationally on the issue.
“These types of crimes are very unique and can have negative effects not just on the victim but on the community that is targeted,” he said.
If Indiana would have enumerated categories, he said Indiana would be removed from the list of five.
“The purpose is to draw attention to these crimes because they are different,” Nasatir said. “If you don't spell out the unique characteristics that make these crimes distinct, then you don't have a bias crime law.”
Most states with bias crimes laws have sentence enhancements – or separate and distinct crimes that carry additional time in jail due to bias. Indiana is considering only a sentence aggravator –or a reason a judge can max out a sentence on an existing crime.
Nasatir has been with the Anti-Defamation League for 14 years and has worked with Indiana officials the entire time. He said every state has its own political history and dynamic.
He noted that years ago the issue of having sexual orientation in a bias crime was what caused problems in Indiana.
“It was deemed a progressive gay bill. Quite honestly we have moved past that, which is progress,” Nasatir said. “I think now the holdup is the inclusion of gender identity.”
But Republicans won't say that out loud. Instead, they say having a list of any kind excludes someone.
Mike Leppert – a spokesman for Indiana Forward – thinks that's a straw man argument. After all, every Hoosier has a race, a sex, a national origin, a sexual orientation. And if they are attacked or targeted because they are white or black, gay or straight, Jewish or Christian – the law would apply.
Indiana Forward is a bipartisan statewide campaign of employers, faith groups, nonprofits, third-party organizations, chambers of commerce and colleges pushing for the law.
“We believe the state should be seeking closure on this issue. And passing a law that doesn't get us off the list of five is not a good faith effort towards closure,” he said. “Without closure, we will be coming back.”
Forty-five other states have managed to do it. Well, really 44. Utah has a quirky law that has long been criticized and never been used in a successful conviction. It also applies only to misdemeanor assaults.
But the Utah Legislature is moving to change the law this year, with a bill coming out of committee last week. And Georgia is also looking to move forward after a successful House vote last week.
Washington state and Oregon had the first hate crime statutes in 1981, according to the National Conference of State Legislatures. More than 6,000 hate crimes are reported nationwide each year with about half related to race.
The Conference of State Legislatures said 44 states cover national origin; 45 cover race and 44 cover religion. The numbers drop for other characteristics – 26 cover gender/sex; 29 cover sexual orientation and 16 include gender identity.
Only a few states have added political affiliation to the list; homelessness and mental disability are also included in a few.
The U.S. Supreme Court has upheld bias crime statutes. A few laws have been struck down by state courts – for example Georgia had a law but it didn't include a list of characteristics and was deemed unconstitutionally vague.
Holcomb offered up an option that would simply mirror Indiana's sentencing statute to the federal hate crimes law.
House Speaker Brian Bosma said last week that Indiana already has a bias crime police reporting statute and it would make more sense to simply refer to that list – if necessary. That list is color, creed, disability, national origin, race, religion and sexual orientation. It does not include sex, gender or gender identity.
“He's shopping options, which is good,” Bosma said. “The goal is to get us off the list. We are exploring options. We are trying to find the best course. Not everyone agrees on the approach. Not everyone agrees that we need to come off the list for that matter.”