How A Hate Crime Holdout State Moved Toward Change

By Michele Gorman | June 28, 2020, 8:02 PM EDT

Amid renewed calls for a hate crime law following the killing of Ahmaud Arbery in Glynn County, Georgia, the state's governor, Brian Kemp, signed a measure Friday that will penalize people who commit crimes that stem from bias.

The Rev. Michelle Rizer-Pool had waited for months as Georgia legislators dragged their feet on passing a hate crime bill in her state, which until Friday was one of a handful in the country without a law that specifically penalizes offenses stemming from bias.

It's an issue that hits close to home for her. In November, police said they thwarted a deadly plot against Rizer-Pool's 45-person congregation — Bethel African Methodist Episcopal Church in Gainesville, Georgia — when they arrested a local 16-year-old girl who they said had written plans in a notebook to carry out an attack at the predominantly Black church.

The police said the student targeted the establishment "based on the racial demographic of the church members."

The problem reaches beyond Gainesville. Three months after the teenager's arrest, 25-year-old Ahmaud Arbery, a Black man, was fatally shot by white men who allegedly used a racist slur after killing him while he was jogging in Glynn County, Georgia.

Attorneys said neither the unidentified minor in Gainesville nor the men arrested in the Arbery case could be charged with hate crimes in the state because such a law didn't exist there at the time.

But that will change for future cases — and Rizer-Pool's wait is now over — after Republican Gov. Brian Kemp on Friday signed into law a bipartisan hate crime measure that passed in Georgia's legislature three days earlier.

"I rejoice; I'm happy that Georgia has made that major step. This has been a long time coming," Rizer-Pool said. "Sam Cooke's song would be the best thing that could be playing right now, 'A Change Is Gonna Come.'"

Advocates of these types of laws say they can protect against the intimidation and victimization of entire communities based on race, religion, gender or other identity characteristics. Opponents have argued that existing laws are adequate to punish crimes.

Before Friday, Georgia was one of several states without hate crime laws. Arkansas, South Carolina and Wyoming don't have such legislation on the books, and the existing law in Indiana is viewed by some as too broad and undefined to count because, in the words of the Anti-Defamation League, "it could encompass virtually any crime targeting a person for virtually any reason."

Some lawmakers in the states without hate crime statutes hope their peers will join them in seizing the moment and act to pass a law, even if they're ultimately unsuccessful and the legislation stalls.

In the Peach State, an outpouring of public support — combined with the current groundswell of activism for racial justice in the U.S. — helped take the bill over the finish line during this legislative session. Still, debate over the past few weeks in Georgia, largely over who should be protected under the measure, shows why getting these bills passed is often fraught with difficulty.

Taking a Stand

Rizer-Pool, who went to the state capital with other church leaders in January to pressure lawmakers to approve hate crime legislation, said she thinks the law will deter future offenses based on prejudice.

It "may not stop everything," she said, "but it hopefully will slow it down."

And she's not alone. Since Arbery's killing, an urgent, renewed push for such legislation grew in the state, including backing from hundreds of business leaders and the Georgia Association of Chiefs of Police.

Sixty leading employers that are based in or have significant operations in Georgia — Coca-Cola, Delta Air Lines, Georgia-Pacific, UPS — signed on to a campaign this month calling for the General Assembly to "support, approve and sign into law a comprehensive, specific and clear bill against hate crimes." By Tuesday, when the legislature passed the measure, that number had grown to more than 670 companies.

"For us, it was important to take a public stand so that no one wondered where we are on this issue, and there's always power in numbers," said Troutman Sanders LLP managing partner Steve Lewis, who was in the initial group to sign the letter.

Police in November said they foiled a deadly plot by a 16-year-old against Bethel African Methodist Episcopal Church in Gainesville, Georgia, a church with a predominantly Black congregation. (Nick Bowman/ Gainesville Times via AP)

While hate crime legislation exists at the federal level, having a law on the books in each state is an important recognition by local officials that this type of offense is damaging to entire communities and society, said Michael German, a former FBI agent who is now a fellow in the Brennan Center for Justice's liberty and national security program.

Georgia's final measure — of which a similar version passed in the House more than a year ago — enhances penalties for any crime motivated by "actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability or physical disability."

On top of any punishment for the underlying crime, the penalty for a felony hate crime carries a minimum two-year prison sentence, and the penalty for certain misdemeanor hate crimes carries a six- to -12-month sentence, according to the law.

Gender identity isn't expressly listed as protected under the bill. But David Barkey, the ADL's senior and southeastern area counsel, said a proper interpretation of the law should cover the category, especially given that gender and sex are included.

The legislation also requires law enforcement to document investigations of hate crimes through a "Bias Crime Report," even if authorities don't make an arrest.

Overall, the U.S. lacks uniform tracking of hate crimes, largely because many federal, state and local authorities don't report or underreport hate crimes to the FBI, German said. But the agency has said it's working with law enforcement to encourage reporting of these statistics.

This isn't the first time Georgia has had a law covering hate crimes. In 2000, the General Assembly passed a hate crime bill that the state Supreme Court unanimously overturned four years later for being "unconstitutionally vague."

It would be another 15 years until Georgia legislators took the first major step toward meaningful action.

'A Defining Moment'

In March 2019, advocates for hate crime legislation scored an important win when a bipartisan measure, House Bill 426, narrowly passed that chamber of the General Assembly. However, it took another 15 months for it to receive a hearing in the Senate.

The reason? A lack of "political courage to do the right thing," said the Rev. James Woodall, state president of the Georgia NAACP.

The COVID-19 pandemic contributed to that delay, suspending the legislative session by about three months. And even after the Senate took up the measure on June 18, it wasn't smooth sailing from there.

At one point, Republicans in committee added police officers and other first responders as a protected class under the bill.

That decision, which came on Juneteenth — the commemoration of the end of slavery in the U.S. — was met with uproar from Georgia Democrats and civil rights organizations, especially in the wake of the recent police killings of Rayshard Brooks in Atlanta, George Floyd in Minneapolis and Breonna Taylor in Louisville.

"To me, it just really misses the moment to try to put an occupation in the exact same category as things that are these intrinsic characteristics to individuals," Democratic state Sen. Elena Parent said in committee, later adding, "We do have strong laws on the books that demonstrate our respect for law enforcement."

In a compromise between Republicans and Democrats, the Senate eventually removed the police protection, though it was transferred to a separate bill that also passed and was sent to the governor. Ultimately, the hate crime measure moved out of the Senate on a 47-6 vote, followed by a 127-38 final vote in the House after debate on changes from the Senate.

Before the Senate's approval Tuesday, some lawmakers shared their own experiences with racism.

Democratic state Sen. Donzella James described an incident from her childhood in Georgia when a group of men yelled a racial slur and threw a Coca-Cola bottle at her.

"Hate crimes have been in existence forever," she said, later adding, "Yes, we cannot legislate love, but we can put stronger penalties in place that may deter those who are committing these crimes from doing it."

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Opponents have tended to speak out against the potential reach of the law.

State Sen. Bill Heath, one of the six Republican senators who voted against the measure, said he's worried about the ramifications of the mandated data collection included in the bill.

"I wondered about a pastor who preaches the Word of God … relative to sexual orientation and perhaps he does it more than once, and then the protests begin," Heath said on the Senate floor. "Perhaps they show up at his church and law enforcement is called out. Will that pastor then get his name on an honored roll?"

But the legislature's approval of the bill, which came on the same day as Brooks' funeral in Atlanta, was largely met with bipartisan praise. After the vote in the House, Speaker David Ralston, a Republican, called it both "a defining moment" and "historic moment" for the state.

"Today we have said that we will not be defined by a senseless act of evil and by the murder of Ahmaud Arbery, but that our Georgia is better than this," he said.

The Push for Others to Follow Suit

Even for those states with hate crime laws, this could be a moment to see if those laws need improvements. The ADL's ongoing 50 States Against Hate campaign seeks tougher and more comprehensive hate crime laws across the country, as many statutes on the books are missing categories of protected people.

While "fully inclusive" laws in places like California and Maryland protect race, religion, ethnicity, sexual orientation, disability, gender and gender identity, according to the ADL's categorization, "noninclusive" legislation in Idaho and Montana, for example, solely covers race, religion and ethnicity.

"The perpetrator of a hate crime really doesn't care anything about you personally," said Barkey. "Hate crimes have a ripple effect that's much broader than, let's say, a mugging or an average assault because it strikes fear into the victimized community."

Hate crimes can be hard to prove, largely because of the intent that prosecutors must demonstrate on the part of defendants, said Wendy Olson, a former U.S. attorney for the District of Idaho who is now a partner at Stoel Rives LLP.

"You have to show that the force or the threatened use of force was directed at somebody because of their race or other protected status under the statute," she said.

And it can be further complicated if there's an assault without an obvious sign of animosity toward a protected class, a sign like a burning cross or a noose.

But despite such hurdles, hate crime statutes can help in seeking justice, Olson suggested.

"Crimes that are directed at people because of their race or because of their sexual orientation are not just assaults on that particular person," she said. "They're intended to terrorize that particular community and send the message that, 'You're not welcome here; your kind aren't welcome here.'"

Hate crime legislation has existed at the federal level since Congress passed the first statute in 1968, according to the U.S. Department of Justice. About four decades later, President Barack Obama expanded the federal definition in 2009 to include protected categories such as sexual orientation and gender identity.

In 2016, Dylann Roof was convicted of federal hate crimes for killing nine people and injuring others at Emanuel AME Church a year earlier in Charleston, South Carolina.

But in the wake of that massacre, in which Democratic state Sen. Clementa Pinckney was killed, South Carolina legislators didn't pass a hate crime measure.

Some are hopeful that recent efforts might continue to gain momentum. There are at least two bills in the South Carolina House that address hate crimes and one in the Senate, according to Democratic state Rep. Beth Bernstein.

"I am more optimistic because of what happened to George Floyd and the recognition that we do have racial inequities here and why there is a need for hate crimes legislation," said Bernstein, who introduced one of the measures in January. "I'm the only member of the Jewish faith who is in the General Assembly. … It's just a very personal thing for me."

But legislative action in the state is unlikely this year, especially since lawmakers are only meeting now for issues related to COVID-19 and the budget, Bernstein said.

In the absence of a law at the state level, leaders in at least three cities in the Palmetto State — Charleston, Columbia and Greenville — have recently taken matters into their own hands by considering local ordinances.

Perry Bradley Jr., who in 2010 established Building Better Communities to fight for racial equality, was involved in advocating for the ordinance passed unanimously by the Columbia City Council in September.

"We know that there's hate out there, and it's so important that people know that they can't just get away with inducing their hate on others by intimidation," he said. "We need to make sure that you are free and safe to be who you are."

His thinking mirrors that of Rizer-Pool's in Georgia. Even though the new state law isn't expected to apply retroactively to the foiled attack against her church, she said she hopes it will change others' minds.

"It would do me good to know that if something like this ever occurs again to anyone," she said, "that hopefully they would get close to the max punishment."

--Editing by Aaron Pelc.

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