Vermont law enforcement officials are calling on the Legislature to make it easier to charge people with hate crimes.
State law currently establishes penalties for those who commit crimes that are “maliciously motivated” by a victim’s race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces, or disability.
But Attorney General TJ Donovan and the Department of State’s Attorneys and Sheriffs say the stipulation requiring proof of “malicious” motivation has created a bind for Vermont courts, contributing to relatively few hate crime convictions in recent years. They also say a dearth of reliable data obscures the true picture of how many bias incidents occur in the state.
A bill devised by the House Judiciary Committee would remove language requiring proof of “malicious” motivation for an offense to rise to the level of hate crime and would establish a more robust system for reporting those incidents to legislative authorities.
Donovan’s office and the state’s attorneys department support the committee’s proposal, representatives of those offices told lawmakers Wednesday.
“This language could be a helpful tool to remove what a court might interpret as an additional burden in proving hate crime enhancements,” said Assistant Attorney General David Scherr. “It would bring Vermont in line with the great majority of jurisdictions that have an enhancement along these lines.”
Hate crime laws in New York and Massachusetts, among other states, establish penalties for crimes without requiring proof of a “malicious” level of motivation.
The state’s Racial Equity Task Force first fielded the recommendation that the law be amended.
Falko Schilling, a lobbyist for the ACLU of Vermont, said his organization would support the changes in the hate crimes law, but he proposed tweaks that would base a hate crime prosecution on a defendant’s actions, rather than their thoughts or beliefs.
“The ACLU’s major opposition to any hate crimes legislation in the past has been that it would require inquiries into any constitutionally protected activities such as speech and association,” Falko told lawmakers. “One way the statute could be improved would be adding language that states that evidence of expression or association of the defendant may not be introduced as evidence at trial.”
The judiciary committee’s bill would also require an annual report — compiled by state’s attorneys and sheriffs department, in consultation with Donovan’s office — analyzing how many bias complaints arise in the state, both in civil and criminal court.
The report would draw from an array of databases covering complaints of gender bias, criminal convictions that include hate crime enhancements, and judgments in civil courts involving bias incidents.
Deputy State’s Attorney James Pepper told lawmakers Wednesday that such a reporting system could provide a better understanding of how often prosecutors use hate-crime enhancements and how often they obtain convictions.
Still, Pepper said the report would be conducted with the acknowledgement that any attempt to document bias incidents should ultimately be looked at as an estimation.
“The vast majority of these crimes go unreported for any number of reasons,” Pepper said. “It could be [due to] a mistrust of law enforcement. It could be embarrassment or shame. So there could be any number of reasons why this data is underreported, and this report will still not give a true picture of what is happening in people’s lives.”
As it’s written, Vermont’s hate crime statute has resulted in relatively few convictions in recent years, Pepper told lawmakers Wednesday.
The push by the attorney general and state’s attorneys follows a series of incidents involving high-profile Bennington white nationalist Max Misch, though Pepper said it was not a direct response.
In 2018, Misch allegedly harassed then-Rep. Kiah Morris, D-Bennington, to the point that she decided to resign from the Legislature.
Donovan chose not to charge him in that case; but Misch last fall faced hate crimes charges after a separate incident, in which he was accused of yelling racist slurs during an altercation with a Black man in Bennington.
Correction: This story has been updated to make clear that the testimony that was noted was provided on Wednesday.
