An alternative hate crimes bill led by House Speaker Matthew Shepherd, R-El Dorado, and Senate President Jimmy Hickey, Jr., R-Texarkana, passed in House Judiciary committee Thursday (April 8) on a voice vote, but not without a closing controversy.
Committee chairwoman Rep. Carol Dalby, R-Texarkana, ruled the “aye” votes approved the measure and in the same sentence declared the meeting adjourned. The quick move did not allow for a roll call vote to be called to determine if 11 or more votes supported the bill.
The House Judiciary Committee includes 11 Republicans and nine Democrats.
SB 622, which is touted as a class protection bill, will create an “aggravating circumstance” provision that would require a criminal defendant to serve at least 80% of his or her sentence if certain motivations led to the crime.
Those criteria include if the defendant purposefully selected the victim because the victim was a member of or was associated with a recognizable and identifiable group or class who share mental, physical, biological, cultural, political, or religious beliefs or characteristics, per the bill. It must be proven that the crime was committed due to these characteristics.
SB 622 differs from SB 3, the originally filed hate crimes bill during this session, that did not pass out of a Senate committee on Wednesday. SB 622 does not mention that it is a “hate crimes” bill and critics say it does not name specifically targeted groups such as those by gender identity, race or age.
Speaker Shepherd addressed questions from members regarding criticism of the bill.
“We’ve probably all heard much about this bill and other bills,” he said. “I would just ask that this bill be judged on its merits.”
Addressing the vagueness of the bill and its definitions, Shepherd said it would be up to the judicial branch to interpret the law, if it passes.
“It’s a political process. … If the court tells us it’s not right, we can address that at that time,” Shepherd added.
He said there are a variety of so-called hate crime laws across the country that have varying degrees of implementation. He said a majority of the 47 states with laws don’t protect gender identity, disability, sexual orientation, age, or political affiliation.
“This bill errs on the side of providing that protection across the board,” he added.
Of the five people who testified on the bill, four spoke against the measure from different viewpoints. One speaker, former Arkansas Supreme Court Justice Annabelle Imber Tuck, said while the measure is well-intentioned, it is legally problematic.
She said a legal challenge for the vagueness in a criminal statute, something she had pondered often in her judicial career, requires the law to have specific and clear definitions in order to give defendants notice of what is a crime. Tuck said the “aggravated circumstance” term in the bill would be easily shot down in her opinion.
“A criminal defendant’s attorney will be able to drive through this with a Mack truck,” she said, noting that prosecutors would be hesitant to use the law if they feared they would get reversed on appeal.
She also said the enhancement language would likely be unconstitutional as it does not provide for the addition of years to an original term because it’s just an adjustment. Finally, Tuck said the vague terms would not allow the courts to be able to provide useable data on convictions to federal, state and local governments.
“I’m not here to debate the politics of it. I’m only asking you to be very clear with yourselves about whether this law will do anything,” Tuck said.
Shepherd countered all of her objections, saying the majority of laws passed in the legislature could be subject to a legal challenge. He said SB 622 was “expansive, not vague.”
Randy Zook, CEO of the Arkansas State Chamber of Commerce and Associated Industries of Arkansas, said passage of the bill was crucial for attracting workers and industry to the state. He noted that Arkansas was now one of two states without a hate crimes law.
He said South Carolina passed a hate crimes law on Wednesday, leaving Arkansas and Wyoming as the only states without a measure on the books. South Carolina’s hate crimes bill has not been signed into law yet. It passed the House of Representatives this week. The South Carolina proposal would add up to five years in prison for someone convicted of violent crimes fueled by hate. Protected groups include race, color, religion, sex, gender, national origin, sexual orientation, or physical or mental disability.
“It’s about attracting talent to Arkansas,” Zook said, noting that in his 13 years in his role with the chamber this issue had generated the most discussion among members.
With nine Democrats and 11 Republicans on the judiciary panel, all 11 GOP votes were considered needed for passage as several Democrats expressed their lack of support for the bill. Rep. Dalby’s quick motion ruling in favor of the bill and adjournment eliminated the possibility of a vote to determine where each member stood and if the vote would withstand a roll call.
Democratic Party of Arkansas Chairman Michael John Gray was critical of how the vote was conducted.
“While it is normal to disagree about policy the heavy handedness from Chair Dalby, with the blessing of Speaker of Matthew Shepherd, is beneath the process and beneath them personally. I was honored to serve with both of them and have seen them operate on a higher standard. It’s sad to see them sink to such a method. This parliamentary trick was a tactic used to dismiss minority voices,” Gray said in a statement.
The bill now goes to the full House for consideration. That chamber has 78 Republicans and 22 Democrats and the vote count remains unclear with some more conservative members opposing the measure along with many Democrats. It needs 51 votes to pass the House; if it does, it would go to Gov. Asa Hutchinson for signature. The governor said he supports the proposal.