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

INDIANAPOLIS, Ind. – The controversy over Indiana’s proposed hate crime law continues as some legal experts challenge the bill’s wording.

In a surprise move on Tuesday, Senate Republicans stripped the hate crimes bill of a list of protected classes and replaced it with the phrase “including bias.” Supporters say that’s a fair way to cover everyone, but legal experts said the bill is being set up to fail.

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

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

He thinks that phrase makes the bill too vague.

“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 say the state needs more specifics, not fewer.

“We need the General Assembly to stand up and say specifically who are 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.

In removing the list of protected classes, Katz said not only did the bill become too vague, but it creates problems for a defendant’s due process.

“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, who believes that would make it easier to overturn a sentence on appeal.

“It’s going to get challenged fairly so, for not giving people advanced notice 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,” said Freeman.

Governor Eric Holcomb (R) has repeatedly called for a specific list; something it appears his own party members in the Senate aren’t willing 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.

Some of the people who oppose the bill changes believe the verbiage swap could have an economic impact in the state.  They fear the lack of a definitive bill could push large companies to question coming to Indy to grow their business.

"If you’re a large organization such as Amazon, and other big businesses that are considering relocating to Indiana, a lot of those people hire from a very diverse group of people," Reverend David W. Greene Sr. said.  He is President of the Concerned Clergy of Indianapolis.

Organizers of the popular Gen Con convention threatened to move the table top and board game convention elsewhere in 2015.  The move followed then Governor Mike Pence’s choice to sign the Religious Freedom Restoration Act (RFRA) into legislature.  The law allowed business owners to refuse services to same-sex couples.  Gen Con said it would have a negative impact on the convention.

“They too want to feel safe. They to want to feel wanted, true hoosier hospitality," Greene said of people coming to Indianapolis for work or play.

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