Criminal Procedure: Sentence and Punishment

JurisdictionGeorgia,United States
Publication year2020
CitationVol. 37 No. 1

CRIMINAL PROCEDURE: Sentence and Punishment

Allison Kretovic
Georgia State University College of Law,

Insoo Lee
Georgia State University College of Law,


Sentence and Punishment: Amend Article 1 of Chapter 10 of Title 17 of the Official Code of Georgia Annotated, Relating to Procedure for Sentencing and Imposition of Punishment, so as to Revise the Criteria for Imposition of Punishment for Crimes Involving Bias or Prejudice; Revise the Sanctions for such Crimes; Provide for the Manner of Serving such Sentences; Provide for Related Matters; Repeal Conflicting Laws; and for Other Purposes

Code Sections: O.C.G.A.§§ 17-10-17 (amended); 17-4-20.2 (new)

Bill Number: HB 426

Act Number: 329

Georgia Laws : 2020 Ga. Laws 10

Effective Date: July 1, 2020

Summary: The Act repeals certain provisions regarding the sentencing of defendants for crimes involving bias or prejudice and provides both criteria for punishment for those crimes and required reporting of those crimes.


A Vague Hate Crimes Bill

in 2000, the Georgia General Assembly passed a hate crimes bill, which enhanced a defendant's sentence if the victim was selected on the basis of bias or prejudice.1 However, just four years later, the Supreme Court of Georgia struck the bill down.2 In Botts v. State, the Supreme Court of Georgia unanimously deemed Code section

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17-10-17 unconstitutionally vague under the Due Process Clauses of both the U.S. Constitution and the Georgia Constitution.3 The statute enhanced a criminal sentence if a jury found "beyond a reasonable doubt that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice."4 The Court found the words "bias" and "prejudice" to be overbroad.5 For example, the Court in Botts found Code section 17-10-17 would encompass the following scenarios:

A rabid sports fan convicted of uttering terroristic threats to a victim selected for wearing a competing team's baseball cap; a campaign worker convicted of trespassing for defacing a political opponent's yard signs; a performance car fanatic convicted of stealing a Ferrari—any "bias or prejudice" for or against the selected victim or property, no matter how obscure, whimsical or unrelated to the victim it may be, but for which proof beyond a reasonable doubt might exist, can serve to enhance a sentence.6

Because there was no qualification as to what constituted "bias or prejudice," the Court held the statute unconstitutionally vague.7 Additionally, the Court held that the statute "impermissibly delegate[d] basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications."8 The Court recognized that the Georgia General Assembly could enhance penalties for bias-motivated offenses, but Code section 17-10-17, as drafted, was unconstitutional.

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A Failed Attempt

Fifteen years after Botts, Representative Chuck Efstration (R-104th) sponsored a bill to put a hate crimes law on the books. Representative Efstration said that the bill was introduced so "[t]hat Georgia [would] no longer be one of only a small group of states without a hate crimes law in effect."9 During those fifteen years, legislators attempted to pass a form of a hate crimes bill on many occasions.10 However, all those previous attempts failed.11 On March 7, 2019, the House voted 96-64 to send the measure to the Senate.12 However, Senate Judiciary Chairman Jesse Stone (R-23rd) did not put the bill on the agenda, stating that he needed "more time" before he would consider it because he was not sure increased penalties for crimes against certain people would help increase the chance of justice for victims.13

A Shooting in Brunswick

On February 23, 2020, Gregory McMichael and Travis McMichael shot Ahmaud Arbery in Brunswick, Georgia.14 Though no arrests were made initially, the killing attracted national attention after the release of video footage of the shooting, which renewed Georgia lawmakers' interest in the previously failed hate crimes bill.15 Arbery's mother, Wanda Cooper-Jones, in a video published online by The New York Times said, "To me, this is clearly a hate crime. But

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Georgia is one of four states in the country without a hate crime law. If Georgia had a hate crime law, Ahmaud's killers could face additional sentencing for murdering my son because of the color of his skin."16 When the legislative session restarted after a break due to COVID-19, legislators were keen on passing the bill.17

Bill Tracking of House Bill (HB) 426

Consideration and Passage by the House

Representative Chuck Efstration (R-104th) sponsored the bill in the House in the 2019 legislative session.18 The bill was assigned to the House Judiciary Non-Civil Committee.19 The House read the bill for the first time on February 22, 2019.20 On February 26, 2019, the House Judiciary Non-Civil Committee amended the bill in part and favorably reported the bill by Committee substitute.21 The Committee offered the following three changes to the bill: (1) addition of "group of victims" language; (2) changing the terminology from "the individual's belief or perception" of the victim's classification to "the actual or perceived" classification; and (3) removal of Code section 17-10-17(c).22 On March 7, 2019, the bill survived a motion to table by a vote of 47 to115.23 Immediately following the failed motion, the House passed the Committee substitute by a vote of 96 to 64.24

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Consideration and Passage by the Senate

Senator Bill Cowsert (R-46th) sponsored the bill in the Senate.25 On March 8, 2019, the Senate read the bill for the first time and referred the bill to the Senate Judiciary Committee.26 The bill stalled in the Senate Judiciary Committee and no further action was taken on the bill until June 2020.27 When the Legislature reconvened in June 2020, there was bipartisan pressure to pass the bill.28 House Speaker David Ralston (R-7th) urged for the passage of the bill as drafted.29 A coalition of Georgia business leaders pushed for the legislature to address the lack of a hate crimes bill in the state.30 On June 18, 2020, the Senate Judiciary Committee held a hearing on the bill.31 Representative Efstration and co-sponsor Representative Calvin Smyre (D-135th) presented the bill to the Committee.32 The Committee heard feedback from members of the community regarding the bill.33

The following day, a last-minute change by the Committee added first responders, such as police officers, firefighters, and EMS crew, as a protected class.34 In the Senate Judiciary Committee meeting on June 19, Senator Elena Parent (D-42nd) attempted to remove the protections for police, stating that the purpose of the bill was not to

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protect people based on their occupation.35 Senator Parent's motion to amend failed, and the bill passed the Senate Judiciary Committee with the first responder provisions intact.36

Following the Senate Judiciary Committee, members of the public and leaders in the community publicly opposed the additional protections for occupations.37 Many called the addition a "poison pill."38 The leaders of the Senate Democratic Caucus said in a statement that the "amended version of House Bill (HB) 426 is harmful and undermines the purpose of hate crime legislation . . . . By including professional affiliation as a protected class, Senate Republicans have decided to ignore the cries of Georgians who are pleading for justice."39

At a meeting of the Senate Rules Committee on June 22, Senator Cowsert presented an updated version of the bill, removing first responders as a protected class.40 The updated version also narrowed the applicable crimes affected by the statute to felonies and five designated misdemeanors.41 The five designated misdemeanors were simple assault, simple battery, battery, criminal trespass, and misdemeanor theft by taking.42 The proposed bill added reporting provisions similar to provisions from Lieutenant Governor Geoff

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Duncan's (R) proposal.43 The bill also added "sex" as a protected category.44 The amended bill passed the Senate Rules Committee.45

On June 23, 2020, the Senate passed the Committee substitute by a vote of 47 to 6.46 The Senate immediately transmitted the bill to the House.47 The same day, the House agreed to the Committee substitute by a vote of 127 to 38.48 The House sent the bill to Governor Brian Kemp (R) on June 25, 2020.49 Governor Kemp signed the bill into law on June 26, 2020.50 The law went into effect on July 1, 2020.51 In a press release on the signing of the Act, Governor Kemp stated: "Today we took an important, necessary step forward for Georgia. We stood together as fellow Georgians to affirm one simple but powerful motto: Georgia is a state too great to hate."52

The Act

The Act amends the following portions of the Official Code of Georgia Annotated: Article 1 of Chapter 10 of Title 17, relating to the procedure for sentencing and imposition of punishment; and Article 2 of Chapter 4 of Title 17, relating to an arrest by law enforcement officers generally.53 The overall purpose of the Act is to increase the sentence of a defendant who intentionally selected a victim based on race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability.54

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Section 1

Section 1 of the Act amends Code section 17-10-17 by replacing the previously unconstitutional hate crimes legislation and providing sentencing guidelines for anyone found guilty of intentionally targeting a victim because of their "actual or perceived race, color, religion, national origin, sex, sexual orientation, gender, mental disability, or physical disability."55 If a person is convicted of a felony or one of five "designated misdemeanors" and the trier of fact...

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