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New hate crimes law is all-inclusive

By CURTIS HILL - Indiana Attorney General

Targeting someone for a crime because they are black, Jewish or transgender is wrong. Targeting someone for a crime because they are law enforcement, military or a political activist is wrong. A person who targets any group for criminal conduct motivated by hate or bias is wrong. On this point, we all should agree. The Indiana General Assembly has now codified this important principle.

Obviously, any crime against the person or property of an innocent victim is despicable – no matter the motive. But bigotry as a motive represents an affront to the highest ideals we cherish as a state and as a nation.

“We hold these truths to be self-evident,” states America’s Declaration of Independence, that all are created equal. Our Constitution guarantees equal protection to us all. In view of such undeniable truths, we have every right, every reason and every expectation to be protected from criminal acts motivated by so ugly a passion as prejudice against any group.

Historically, our Indiana courts have strongly upheld judges’ ability to consider criminals’ hateful biases to be aggravating factors justifying harsher sentences.

In 1999, in fact, I watched from a metaphorical front-row seat as this precedent gained deeper roots in Indiana. That year, I was working as a deputy prosecutor in Elkhart County when a pair of cold-blooded killers randomly targeted a young black man for death – simply because he was black.

Seventeen-year-old Sasezley Richardson was shot to death as he unsuspectingly walked across the parking lot of a local mall. The prosecutor described the horrifying attack as a hate crime.

One of the two defendants, Alex Witmer, agreed to plead guilty in exchange for avoiding the death penalty. In sentencing Witmer, the trial court stated that the killer’s racist motivation justified handing down a greater penalty for his crime.

Upon appeal, the case made its way eventually to the Indiana Supreme Court. Writing for a unanimous court, then-Chief Justice Randall Shepard made a clear and unequivocal statement. “(W)e say without hesitation,” he wrote, “that racially motivated crimes are intolerable and may constitute an aggravating circumstance.”

Despite the absence of a statute prohibiting hateful conduct, Witmer v. Indiana further established an important principle of law in our state – that crimes motivated by bias are “intolerable” and subject to harsher punishment. 

Although this case law has been in effect (and relied upon by Indiana prosecutors and judges) since 2003, Indiana has been targeted as being silent on hate crimes because Indiana lawmakers had never written this principle explicitly into the text of Indiana statutes. Now they have. And codifying the Witmer rule now breaks the legislative silence and satisfies those who prefer a statutory construction of law to case law. So be it.

In constructing the bill now signed into law by the governor, the General Assembly chose to prohibit and punish this wrong behavior without limitation.

If it is wrong to target blacks or Jews or transgenders, would it not also be wrong to target cops or soldiers or activists? If the objective is to prohibit and punish this wrong behavior, then the wrong behavior should be prohibited or punished regardless of who is wronged.

Designating specific groups as “protected” necessarily implies the existence of other groups that are not. This would represent an odd sort of discriminatory practice in a statute that purports to prohibit discrimination. The legislature did well to avoid the exercise of segregating “protected“ groups from the non-protected.

Bias motivation as an aggravating factor added to our existing sentencing structure implicates no additional due process requirements. Further, it represents a constitutionally sound codification of the Witmer rule, which already provided inclusive protections for all who are victimized by bias motivation.

The effect of this legislative action is twofold. Indiana now has a statute that specifically recognizes and prohibits bias-motivated criminal behavior. And blacks, Jews, transgenders, cops, military, activists, women, gays and ANY other group so targeted for bias-motivated criminal behavior will enjoy equal protection under the law.

We all would do well to remember that Indiana is a sovereign state with the ability and constitutional authority to chart our own course and define our own laws. As such, let’s all stand against crimes borne of hate in a way that best serves the cause of true equality and true justice.

Curtis Hill is Indiana’s attorney general.