The men accused of killing Ahmaud Arbery won’t hate crime charges in Georgia – here’s why.

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GEORGIA – With escalating interest to enact a hate crime law in the Peach State, a renewed resurgence to pass the previously stalled House Bill 426 emerged. This surge, however, appallingly reveals much about the bill’s issues.

HB 426 is not an actual “hate crimes law” and wouldn’t pass muster, even if passed. The proposal does not create any new criminal offense, and, therefore, no “hate crimes” to prosecute. It only allows a trial judge to determine whether the underlying crime was motivated by a defendant’s bias, prejudice, or animus towards race, among other protected classes.

This could result in adding up to one year (for misdemeanor offenses) and a minimum of two years (for felonies) along with a $5,000 fine.

Ironically, at the heart of this resurgence are public figures who opposed Governor Brian Kemp’s efforts to upgrade Georgia’s anti-gang laws, House Bill 994, the Sheffey Act. Principally, proponents contend the current version of HB 426 prevents the erosion of criminal justice reform championed under Governor Nathan Deal. This sounds really familiar.

Georgia’s Street Gang Act (GSGA), however, already demonstrated itself as an incredibly powerful weapon in hate crimes prosecutions. Lost in the push for HB 426 is the fact that one of the most dramatic hate crimes in recent years was prosecuted under GSGA.

In 2015, during a two county spree of drunken pick-up truck driving, racial-slur hurling, and Confederate flag-waving, a group of white supremacists wielding firearms terrorized numerous black citizens celebrating a child’s birthday and others who were shopping at WalMart.

Appropriately harsh sentences were meted out by the presiding judge, namely: an additional 20 years for one defendant and 15 years for another.

This hate crime prosecution was under GSGA, which allows for hate groups and other terrorist organizations to be prosecuted as criminal street gangs. This law can expose bias-motivated crimes and allow multiple criminal charges that carry 5-20 year sentences, potentially served consecutively. Plus, GSGA contains a connected evidence statute, allowing the admission of all prior related crimes against defendants. 

Under HB 426, however, the trial judge in the Confederate flag case could have added a whopping two years minimally, a sentence far from the reality of appropriateness much like HB 426’s provisions.

Under current Georgia law, for instance, both malice murder and felony murder carry mandatory life sentences. What exactly could be accomplished by attaching two years and a $5,000 fine to that?

Furthermore, Georgia law outlines the circumstances under which the death penalty can be imposed in murder cases.  According to law professor and death penalty supporter Robert Blecker, identifying murderers who are the “worst of the worst” tells us which “among them…deserve to die.”

Apparently, advocates for HB 426 do not believe that racist murderers qualify since it does not add “bias-motivated violence” or other hate-related crimes to the list of “death qualifiers” under Georgia law. So much for proponents’ dedication to Ahmaud Arbery’s mother, who bravely stated her son’s murderers deserved the death penalty. HB 426 sponsors appear to have no intention of fixing their dereliction, as the House Speaker even called for its passage with no amendments or revisions.

Additionally, Georgia State University Law Professor Jessica Cino maintains that actual hate crimes prosecutions are “difficult to prove.” Cino explained that often the most compelling proof in hate crimes cases are prior racist statements of the defendant.

Legal restrictions, however, generally preclude the introduction of a criminal defendant’s other acts of misconduct. Interestingly enough, Cino’s own colleague, Georgia State University Law Professor Emeritus Paul Milich, has championed that courts allowing jurors to consider defendants’ other crimes, and similar proof, has “[degraded]…the American criminal trial system.”

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Thus, a remedy for these types of obstacles is to attach new evidence rules that bypass normal restrictions in hate crimes prosecutions. Georgia law has such statutes, for instance, in sex crimes prosecutions. HB 426 contains no evidence rule for hate crimes.

HB 426, thus, would actually provide de facto benefits to hate crimes defendants that sex crime defendants do not receive: strickening of potentially prejudicial evidence to make a prosecution stick.

Lastly, Georgia law does not authorize Georgia’s statewide prosecutor, the Attorney General, or statewide criminal investigation agency, the Georgia Bureau of Investigation to independently investigate murder cases, let alone hate crimes or gang crimes.

Instead, both must wait for local authorities to request their involvement. This must be just fine with HB 426’s adherents as there is no expansion of either’s authority under the bill. Georgia law also limits the offenses where a juvenile can face charges as an adult at the prosecution’s discretion. HB 426’s supporters must not believe that hate crimes are repugnant enough to make it on that list.

Strengthening GSGA, on the other hand, would improve the prosecution of hate crimes as well as gang crimes. But many supporters of HB 426 were part of the “criminal justice reform” movement that torpedoed Kemp’s attempt to contend with the 70,000 gang member occupation in the state.

Reiterating a frequent result for Georgia citizens, if HB 426 passes, is the continuation of the status quo, for both hate crimes and gang crimes. Particularly, both crimes:

  1. Cannot be independently investigated by the GBI (especially concerning given recent news);
  2. Cannot be independently prosecuted by Georgia’s Attorney General;
  3. Cannot be prosecuted as adult crimes if committed by juveniles;
  4. Cannot be prosecuted in a single county venue for multiple county sprees; and
  5. Cannot serve as the basis for the death penalty in murder cases.

Anyone in politics or the media who champions the current HB 426 as an actual hate crime law, without seriously revisiting it and while dive-bombing HB 994, should be seriously questioned by their constituency.

Renowned political commentator Phil Kent rightfully posited that the actions of the Georgia House are “appalling” and they should join its few remaining public officials “who properly prioritize their constitutional duty to protect law-abiding Georgians.

Until then, the current HB 426 will remain a bridge too far in Georgia.

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