In 1968, Congress passed the first federal hate crime statute, which made it a crime to use, or threaten to use, force to willfully interfere with a person because of race, color, religion, or national origin. In 2009, Congress expanded the federal definition of hate crime to include crimes based on gender, disability, gender identity, or sexual orientation.
Most states have passed similar hate crime laws. In fact, only Arkansas, South Carolina, and Wyoming have yet to do so. That may soon change for Arkansas, as the Arkansas General Assembly is currently considering hate crime legislation.
The Proposed Hate Crime Law
Under the proposed Senate Bill 3, the hate crime law would create “a sentence enhancement for certain offenses committed against a person due to the person’s attributes.” Specifically, the law would allow for enhanced penalties for crimes committed against a victim if the victim was selected based on the victim’s:
- National origin,
- Gender identity,
- Sexual orientation,
- Disability, or
- Service in United States Armed Forces.
In order for an enhanced penalty to apply, prosecutors would have to prove, beyond a reasonable doubt, that the defendant purposely selected the victim based on one of the above attributes. The bill provides that abstract beliefs, expressions of hostility, or association with a group opposed to the attribute is not enough to trigger an enhanced penalty. Rather, there must be evidence that the defendant purposely selected the victim based on that attribute.
If passed, the law would allow for the following enhanced penalties upon conviction of a crime:
- An additional term of imprisonment up to 20% of the original term,
- An additional fine up to 20% of any fine assessed, and
- An additional term of probation, suspended sentence, or suspended imposition of sentence up to 20% of the original probation, suspended sentence, or suspended imposition of sentence.
The maximum enhanced penalty would be 20%, regardless of whether the victim had one or more of the attributes listed in the statute.
To guard against false accusations and convictions, the law would make it a Class D felony to file a false report accusing someone of a hate crime and a Class C felony to frivolously or maliciously prosecute a defendant under the hate crime law without proper grounds.
In addition to providing enhanced penalties, the proposed law would also require the state to gather and report data on hate crimes. The Arkansas Attorney General’s office would be tasked with establishing and maintaining a central database of hate crimes. Each law enforcement agency would be required to submit a quarterly report to the Attorney General, including a summary of the hate crime, demographic information on the suspect and the victim, and the status or outcome of all related criminal investigations and prosecutions. Each year, the Attorney General would publish a summary and report of the data to be delivered to the governor, co-chairs of the Legislative Council, the House Speaker, the Senate President Pro Tempore, the Arkansas U.S. Attorneys, and the FBI.
Initial Reactions to the Proposed Law
Republican Senator Jim Hendren is the lead sponsor of the bill, which includes bipartisan support in its cosponsors. The proposed legislation has the support of Governor Asa Hutchinson. Arkansas businesses, including Walmart and Tyson Foods, have also voiced support for the hate crime law.
Critics of the proposed legislation have suggested that the law will do little to reduce hate crimes and will promote unequal justice by singling out certain groups. “If you’re going to do it for one group of people, why wouldn’t you do it for another,” asked Senate President Jimmy Hickey. Some critics have also taken issue with the inclusion of gender identity and sexual orientation in the bill’s list of attributes.
The hate crime bill is currently awaiting consideration in the Senate Judiciary committee. More information, as well as the full text of the bill, can be found on the Arkansas State Legislature’s website at https://www.arkleg.state.ar.us/Bills/Detail?id=SB3&ddBienniumSession=2021/2021R.