Legal expert challenges new wording in Indiana’s proposed hate crime bill

Posted at 10:11 PM, Feb 20, 2019
and last updated 2019-02-21 00:11:08-05

INDIANAPOLIS – Controversy over Indiana’s proposed hate crime law continued as some legal experts challenged the bill’s wording.

On Tuesday, in a surprise move Senate Republicans stripped the bill of a list of protected classes and replaced it with the phrase “including bias.” Supporters argued it was a fair way to cover everyone, but legal experts said the bill is set up to fail.

“The story of this bill if it becomes law is not going to be a happy one,” said Indiana University McKinney School of Law Professor Robert Katz. “The term 'bias' isn’t a legal term.”

Katz said he thinks the phrase makes the bill too vague.

“It’s difficult for courts to interpret, it gives them no guidance on how to define that term,” said Katz.

“I mean there’s bias on all sorts of grounds,” said Katz, “bias against Red Sox fans, bias against short people.”

Opponents of the amendment said the state needs more specifics, not fewer.

“We need the General Assembly to stand up and say specifically who [is] being targeted because of these crimes and why they’re being targeted,” said David Sklar of Indiana Forward, an advocacy group which says it represents more than 700 businesses, universities and organizations across Indiana.

Along with making the bill too vague, removing the list of protected classes creates due process problems for defendants, Katz said.

“It doesn’t give people who might be prosecuted and punished under the law with advance notice as to what would trigger an aggravated penalty,” said Katz.

He said he believes that ambiguity would make it easier to overturn a sentence on appeal.

“It’s going to get challenged fairly so, for not giving people advanced noticed of what the statute is going to criminalize,” said Katz.

The amendment’s author, Republican State Senator Aaron Freeman (Marion County), said he based the wording on a 2003 Indiana Supreme Court decision, which ruled a judge could consider bias as an aggravating factor.

“And I used that language, put it in our code, to make it very clear what judges and prosecutors can use,” Freeman said.

Governor Eric Holcomb (R) has repeatedly called for a specific list, something members of his own party in the Senate seem unwilling to give him.

“I don’t like being opposite the governor on a particular issue,” said Freeman, “but I hope the governor is going to be pragmatic as I am and wants something done.”

The amended bill is expected to get its third reading in the Senate Thursday afternoon.