Lydia X. Z. Brown

Home » Disability & Hate Crimes Laws

Disability & Hate Crimes Laws

Hate crimes statutes generally either (a) create a new category of criminal offense (new and additional crimes) for crimes against persons or property on the basis of a protected class, or (b) enhance criminal penalties (harsher sentencing) if a person is convicted of a crime that they committed on the basis of the victim’s actual or perceived membership in a protected class. Some hate crimes laws mandate data collection and reporting only. Federally, disability is recognized under the Matthew Shepard and James Byrd, Jr. Hate Crimes Prevention Act, which also allows voluntary data collection via state and local level reporting to the FBI’s National Crime Information Center, although disability hate crimes — and many others — are probably severely underreported.

These types of laws are an attempt to recognize hate, bias, or prejudice as a contributor to much violence against marginalized people. But these statutes are problematic from an anti-mass incarceration perspective, because they create new categories of crime and reinforce use of/reliance on prisons as a means of punishment. They can also be very easily misused — as in the case of recent pushes for “Blue Lives Matter” legislation, which includes law enforcement officers as a protected class in a state’s hate crimes statute, even though most states already have laws on the books making it a worse offense to physically attack a police officer than a civilian.

Overall, here are all the types of hate crimes laws — this resource primarily focuses on hate crimes laws focused on criminal offenses and sentences, since those are the ones most often considered in policing and prosecution, and also the ones most likely to contribute to more mass incarceration:

By crimes

  • Attach hate crime status to existing crimes (like assault, murder, battery, or vandalism) if the motive was related to a person’s actual or perceived membership in a protected group or their actual or perceived characteristic (as disabled, as queer, as a person of color, as Muslim, etc.)
  • Create a new category of criminal offense about specific types of hate crimes — often against cross burning, or intimidation or vandalism while wearing a hood (the KKK’s usual dress), or vandalism of a religious place
  • Create a new category of criminal offense as against any person belonging to a protected group or based on a person’s characteristics — often called “hate crime,” “ethnic intimidation,” or “malicious harassment”

By sentences

  • Impose harsher sentences as mandatory — often by upping the level of crime to the next highest one, but can also just give a number of months/years in prison or fines
  • Allow but not require judges to impose harsher sentences
  • Require people convicted of hate crimes to complete extra parts of a sentence, like diversity training programs

Other

  • Require local and state law enforcement agencies to report data about suspected hate crimes to a central location
  • Require police officers to receive training about diversity and/or hate crimes
  • Allow a state’s Attorney General (lawyer for the state government) to bring a lawsuit against someone believed to commit a hate crime
  • Allow a victim or survivor of a hate crime to bring a lawsuit against the person or people who did it

As of January 2017, this is the status of state hate crimes statutes (mainly focused on crimes and sentencing) with regard to disability as a protected class:

States (including D.C.) that include disability in their hate crimes law, where the hate crimes law creates new criminal offenses or allows increased sentences (regardless of whether it also requires data collection/reporting) — 32 total, with varying definitions of “disability”

Alabama, Alaska, Arizona, California, Colorado, Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Iowa, Louisiana, Maine, Maryland, Massachusetts, Minnesota, Mississippi, Missouri, Nebraska, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Rhode Island, Tennessee, Texas, Vermont, Washington, Wisconsin

States that include disability in their hate crimes law, where the hate crimes law only requires data collection (reporting) — 1 total

Indiana

States that have a hate crimes law of any kind but exclude disability — 14 total

Florida, Idaho, Kansas, Kentucky, Michigan, Montana, North Carolina, North Dakota, Ohio, Pennsylvania, South Dakota, Utah (special case — law does not specify bias or prejudice, or enumerate any characteristics or protected classes that trigger a hate crime analysis), Virginia, West Virginia

States without any kind of hate crimes law — 4 total

Arkansas, Georgia, South Carolina, Wyoming


Alabama — includes disability, imposes harsher sentences

Ala. Code § 13A-5-13 

(a) The Legislature finds and declares the following:

(1) It is the right of every person, regardless of race, color, religion, national origin, ethnicity, or physical or mental disability, to be secure and protected from threats of reasonable fear, intimidation, harassment, and physical harm caused by activities of groups and individuals.

(2) It is not the intent, by enactment of this section, to interfere with the exercise of rights protected by the Constitution of the State of Alabama or the United States.

(3) The intentional advocacy of unlawful acts by groups or individuals against other persons or groups and bodily injury or death to persons is not constitutionally protected when violence or civil disorder is imminent, and poses a threat to public order and safety, and such conduct should be subjected to criminal sanctions.

(b) The purpose of this section is to impose additional penalties where it is shown that a perpetrator committing the underlying offense was motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability.

(c) A person who has been found guilty of a crime, the commission of which was shown beyond a reasonable doubt to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, shall be punished as follows:

(1) Felonies:

a. On conviction of a Class A felony that was found to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the sentence shall not be less than 15 years.

b. On conviction of a Class B felony that was found to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the sentence shall not be less than 10 years.

c. On conviction of a Class C felony that was found to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the sentence shall not be less than two years.

d. On conviction of a Class D felony that was found to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the sentence shall not be less than 18 months.

e. For purposes of this subdivision, a criminal defendant who has been previously convicted of any felony and receives an enhanced sentence pursuant to this section is also subject to enhanced punishment under the Alabama Habitual Felony Offender Act, Section 13A-5-9.

(2) Misdemeanors:

On conviction of a misdemeanor which was found beyond a reasonable doubt to have been motivated by the victim’s actual or perceived race, color, religion, national origin, ethnicity, or physical or mental disability, the defendant shall be sentenced for a Class A misdemeanor, except that the defendant shall be sentenced to a minimum of three months.

Alaska — includes disability, imposes harsher sentences

Alaska Stat. § 12.55.155(c)

(c) The following factors shall be considered by the sentencing court if proven in accordance with this section, and may allow imposition of a sentence above the presumptive range set out in AS 12.55.125:

[…]

(5) the defendant knew or reasonably should have known that the victim of the offense was particularly vulnerable or incapable of resistance due to advanced age, disability, ill health, or extreme youth or was for any other reason substantially incapable of exercising normal physical or mental powers of resistance;

[…]

(22) the defendant knowingly directed the conduct constituting the offense at a victim because of that person’s race, sex, color, creed, physical or mental disability, ancestry, or national origin;

Arizona — includes disability, imposes harsher sentences, mandates data collection

A.R.S. § 13-701 (2016)

C. The minimum or maximum term imposed pursuant to section 13-702, 13-703, 13-704, 13-705, 13-708, 13-710, 13-1406, 13-3212 or 13-3419 may be imposed only if one or more of the circumstances alleged to be in aggravation of the crime are found to be true by the trier of fact beyond a reasonable doubt or are admitted by the defendant, except that an alleged aggravating circumstance under subsection D, paragraph 11 of this section shall be found to be true by the court, or in mitigation of the crime are found to be true by the court, on any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.

D. For the purpose of determining the sentence pursuant to subsection C of this section, the trier of fact shall determine and the court shall consider the following aggravating circumstances, except that the court shall determine an aggravating circumstance under paragraph 11 of this subsection:

[…]

13. The victim of the offense is at least sixty-five years of age or is a person with a disability as defined in section 38-492, subsection B.

14. The defendant was appointed pursuant to title 14 as a fiduciary and the offense involved conduct directly related to the defendant’s duties to the victim as fiduciary.

15. Evidence that the defendant committed the crime out of malice toward a victim because of the victim’s identity in a group listed in section 41-1750, subsection A, paragraph 3 or because of the defendant’s perception of the victim’s identity in a group listed in section 41-1750, subsection A, paragraph 3.

A.R.S. § 41-1750(A)(3) (2016)

A. The department is responsible for the effective operation of the central state repository in order to collect, store and disseminate complete and accurate Arizona criminal history records and related criminal justice information. The department shall: […] 3. Collect information concerning criminal offenses that manifest evidence of prejudice based on race, color, religion, national origin, sexual orientation, gender or disability.

Arkansas — no hate crimes laws

California — includes disability, creates new criminal offenses, imposes harsher sentences

Cal. Pen. Code § 422.55 (2016)

For purposes of this title, and for purposes of all other state law unless an explicit provision of law or the context clearly requires a different meaning, the following shall apply: (a) “Hate crime” means a criminal act committed, in whole or in part, because of one or more of the following actual or perceived characteristics of the victim: (1) Disability. (2) Gender. (3) Nationality. (4) Race or ethnicity. (5) Religion. (6) Sexual orientation. (7) Association with a person or group with one or more of these actual or perceived characteristics. (b) “Hate crime” includes, but is not limited to, a violation of Section 422.6.

Cal. Pen. Code § 422.6 (2016)

(a) No person, whether or not acting under color of law, shall by force or threat of force, willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55.

(b) No person, whether or not acting under color of law, shall knowingly deface, damage, or destroy the real or personal property of any other person for the purpose of intimidating or interfering with the free exercise or enjoyment of any right or privilege secured to the other person by the Constitution or laws of this state or by the Constitution or laws of the United States, in whole or in part because of one or more of the actual or perceived characteristics of the victim listed in subdivision (a) of Section 422.55. (

c) Any person convicted of violating subdivision (a) or (b) shall be punished by imprisonment in a county jail not to exceed one year, or by a fine not to exceed five thousand dollars ($5,000), or by both the above imprisonment and fine, and the court shall order the defendant to perform a minimum of community service, not to exceed 400 hours, to be performed over a period not to exceed 350 days, during a time other than his or her hours of employment or school attendance. However, no person may be convicted of violating subdivision (a) based upon speech alone, except upon a showing that the speech itself threatened violence against a specific person or group of persons and that the defendant had the apparent ability to carry out the threat.

(d) Conduct that violates this and any other provision of law, including, but not limited to, an offense described in Article 4.5 (commencing with Section 11410) of Chapter 3 of Title 1 of Part 4, may be charged under all applicable provisions. However, an act or omission punishable in different ways by this section and other provisions of law shall not be punished under more than one provision, and the penalty to be imposed shall be determined as set forth in Section 654.

Cal. Pen. Code § 422.7 (2016)

Except in the case of a person punished under Section 422.6, any hate crime that is not made punishable by imprisonment in the state prison shall be punishable by imprisonment in a county jail not to exceed one year, or by imprisonment pursuant to subdivision (h) of Section 1170, or by a fine not to exceed ten thousand dollars ($10,000), or by both that imprisonment and fine, if the crime is committed against the person or property of another for the purpose of intimidating or interfering with that other person’s free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States under any of the following circumstances, which shall be charged in the accusatory pleading:

(a) The crime against the person of another either includes the present ability to commit a violent injury or causes actual physical injury.

(b) The crime against property causes damage in excess of nine hundred fifty dollars ($950).

(c) The person charged with a crime under this section has been convicted previously of a violation of subdivision (a) or (b) of Section 422.6, or has been convicted previously of a conspiracy to commit a crime described in subdivision (a) or (b) of Section 422.6.

Cal. Pen. Code § 422.7.5 (2016)

(a) Except in the case of a person punished under Section 422.7, a person who commits a felony that is a hate crime or attempts to commit a felony that is a hate crime, shall receive an additional term of one, two, or three years in the state prison, at the court’s discretion.

(b) Except in the case of a person punished under Section 422.7 or subdivision (a) of this section, any person who commits a felony that is a hate crime, or attempts to commit a felony that is a hate crime, and who voluntarily acted in concert with another person, either personally or by aiding and abetting another person, shall receive an additional two, three, or four years in the state prison, at the court’s discretion.

(c) For the purpose of imposing an additional term under subdivision (a) or (b), it shall be a factor in aggravation that the defendant personally used a firearm in the commission of the offense. Nothing in this subdivision shall preclude a court from also imposing a sentence enhancement pursuant to Section 12022.5, 12022.53, or 12022.55, or any other law.

(d) A person who is punished pursuant to this section also shall receive an additional term of one year in the state prison for each prior felony conviction on charges brought and tried separately in which it was found by the trier of fact or admitted by the defendant that the crime was a hate crime. This additional term shall only apply where a sentence enhancement is not imposed pursuant to Section 667 or 667.5.

(e) Any additional term authorized by this section shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact.

(f) Any additional term imposed pursuant to this section shall be in addition to any other punishment provided by law.

(g) Notwithstanding any other provision of law, the court may strike any additional term imposed by this section if the court determines that there are mitigating circumstances and states on the record the reasons for striking the additional punishment.

Colorado — includes disability, creates new criminal offenses

Colo. Rev. Stat. § 18-9-121 (2016)

(1) The general assembly hereby finds and declares that it is the right of every person, regardless of race, color, ancestry, religion, national origin, physical or mental disability, or sexual orientation to be secure and protected from fear, intimidation, harassment, and physical harm caused by the activities of individuals and groups. The general assembly further finds that the advocacy of unlawful acts against persons or groups because of a person’s or group’s race, color, ancestry, religion, national origin, physical or mental disability, or sexual orientation for the purpose of inciting and provoking bodily injury or damage to property poses a threat to public order and safety and should be subject to criminal sanctions.

(2) A person commits a bias-motivated crime if, with the intent to intimidate or harass another person because of that person’s actual or perceived race, color, religion, ancestry, national origin, physical or mental disability, or sexual orientation, he or she: (a) Knowingly causes bodily injury to another person; or (b) By words or conduct, knowingly places another person in fear of imminent lawless action directed at that person or that person’s property and such words or conduct are likely to produce bodily injury to that person or damage to that person’s property; or (c) Knowingly causes damage to or destruction of the property of another person.

(3) Commission of a bias-motivated crime as described in paragraph (b) or (c) of subsection (2) of this section is a class 1 misdemeanor. Commission of a bias-motivated crime as described in paragraph (a) of subsection (2) of this section is a class 5 felony; except that commission of a bias-motivated crime as described in said paragraph (a) is a class 4 felony if the offender is physically aided or abetted by one or more other persons during the commission of the offense.

(3.5)(a) In determining the sentence for a first-time offender convicted of a bias-motivated crime, the court shall consider the following alternatives, which shall be in addition to and not in lieu of any other sentence received by the offender: (I) Sentencing the offender to pay for and complete a period of useful community service intended to benefit the public and enhance the offender’s understanding of the impact of the offense upon the victim; (II) At the request of the victim, referring the case to a restorative justice or other suitable alternative dispute resolution program established in the judicial district pursuant to section 13-22-313, C.R.S. (b) In considering whether to impose the alternatives described in paragraph (a) of this subsection (3.5), the court shall consider the criminal history of the offender, the impact of the offense on the victim, the availability of the alternatives, and the nature of the offense. Nothing in this section shall be construed to require the court to impose the alternatives specified in paragraph (a) of this subsection (3.5).

(4) The criminal penalty provided in this section for commission of a bias-motivated crime does not preclude the victim of such action from seeking any other remedies otherwise available under law.

(5) For purposes of this section: (a) “Physical or mental disability” refers to a disability as used in the definition of the term “person with a disability” in section 18-6.5-102(11). (b) “Sexual orientation” means a person’s actual or perceived orientation toward heterosexuality, homosexuality, bisexuality, or transgender status.

Connecticut — includes disability, creates new criminal offenses

Conn. Gen Stat. § 53a-181j (2016)

(a) A person is guilty of intimidation based on bigotry or bias in the first degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, causes serious physical injury to such other person or to a third person.

(b) Intimidation based on bigotry or bias in the first degree is a class C felony.

Conn. Gen Stat. § 53a-181k (2016)

(a) A person is guilty of intimidation based on bigotry or bias in the second degree when such person maliciously, and with specific intent to intimidate or harass another person because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person, does any of the following: (1) Causes physical contact with such other person, (2) damages, destroys or defaces any real or personal property of such other person, or (3) threatens, by word or act, to do an act described in subdivision (1) or (2) of this subsection, if there is reasonable cause to believe that an act described in subdivision (1) or (2) of this subsection will occur.

(b) Intimidation based on bigotry or bias in the second degree is a class D felony.

Conn. Gen Stat. § 53a-181l (2016)

(a) A person is guilty of intimidation based on bigotry or bias in the third degree when such person, with specific intent to intimidate or harass another person or group of persons because of the actual or perceived race, religion, ethnicity, disability, sexual orientation or gender identity or expression of such other person or persons: (1) Damages, destroys or defaces any real or personal property, or (2) threatens, by word or act, to do an act described in subdivision (1) of this subsection or advocates or urges another person to do an act described in subdivision (1) of this subsection, if there is reasonable cause to believe that an act described in said subdivision will occur.

(b) Intimidation based on bigotry or bias in the third degree is a class A misdemeanor.

Delaware — includes disability, imposes harsher sentences

Del. Code tit. 11, § 1304 (2016)

(a) Any person who commits, or attempts to commit, any crime as defined by the laws of this State, and who intentionally: (1) Commits said crime for the purpose of interfering with the victim’s free exercise or enjoyment of any right, privilege or immunity protected by the First Amendment to the United States Constitution, or commits said crime because the victim has exercised or enjoyed said rights; or (2) Selects the victim because of the victim’s race, religion, color, disability, sexual orientation, gender identity, national origin or ancestry, shall be guilty of a hate crime. For purposes of this section, the term “sexual orientation” means heterosexuality, bisexuality, or homosexuality, and the term “gender identity” means a gender-related identity, appearance, expression or behavior of a person, regardless of the person’s assigned sex at birth.

(b) Hate crimes shall be punished as follows: (1) If the underlying offense is a violation or unclassified misdemeanor, the hate crime shall be a class A misdemeanor; (2) If the underlying offense is a class A, B, or C misdemeanor, the hate crime shall be a class G felony; (3) If the underlying offense is a class C, D, E, F, or G felony, the hate crime shall be 1 grade higher than the underlying offense; (4) If the underlying offense is a class A or B felony, the hate crime shall be the same grade as the underlying offense, and the minimum sentence of imprisonment required for the underlying offense shall be doubled.

District of Columbia — includes disability, imposes harsher sentences

D.C. Code § 22-3701 (2016)

For the purposes of this chapter, the term: (1) “Bias-related crime” means a designated act that demonstrates an accused’s prejudice based on the actual or perceived race, color, religion, national origin, sex, age, marital status, personal appearance, sexual orientation, gender identity or expression, family responsibility, homelessness, physical disability, matriculation, or political affiliation of a victim of the subject designated act. (2) “Designated act” means a criminal act, including arson, assault, burglary, injury to property, kidnapping, manslaughter, murder, rape, robbery, theft, or unlawful entry, and attempting, aiding, abetting, advising, inciting, conniving, or conspiring to commit arson, assault, burglary, injury to property, kidnapping, manslaughter, murder, rape, robbery, theft, or unlawful entry. (3) “Gender identity or expression” shall have the same meaning as provided in § 2-1401.02(12A).

D.C. Code § 22-3703 (2016)

A person charged with and found guilty of a bias-related crime shall be fined not more than 11 /2 times the maximum fine authorized for the designated act and imprisoned for not more than 11 /2 times the maximum term authorized for the designated act. D.C. Code § 22-3703 (2016)

Florida — excludes disability, imposes harsher sentences

Fla. Stat. Ann. § 775.085

(1)(a) The penalty for any felony or misdemeanor shall be reclassified as provided in this subsection if the commission of such felony or misdemeanor evidences prejudice based on the race, color, ancestry, ethnicity, religion, sexual orientation, national origin, homeless status, or advanced age of the victim: 1. A misdemeanor of the second degree is reclassified to a misdemeanor of the first degree. 2. A misdemeanor of the first degree is reclassified to a felony of the third degree. 3. A felony of the third degree is reclassified to a felony of the second degree. 4. A felony of the second degree is reclassified to a felony of the first degree. 5. A felony of the first degree is reclassified to a life felony. […]

Georgia — no hate crimes laws 

The state supreme court struck down Georgia’s entire hate crimes law in 2004.

Hawaii — includes disability, imposes harsher sentences

Haw. Rev. Stat. § 706-662(6)

A defendant who has been convicted of a felony may be subject to an extended term of imprisonment under section 706-661 if it is proven beyond a reasonable doubt that an extended term of imprisonment is necessary for the protection of the public and that the convicted defendant satisfies one or more of the following criteria:

[…]

(6) The defendant is a hate crime offender in that: (a) The defendant is convicted of a crime under chapter 707, 708, or 711; and (b) The defendant intentionally selected a victim or, in the case of a property crime, the property that was the object of a crime, because of hostility toward the actual or perceived race, religion, disability, ethnicity, national origin, gender identity or expression, or sexual orientation of any person. For purposes of this subsection, “gender identity or expression” includes a person’s actual or perceived gender, as well as a person’s gender identity, gender-related self-image, gender-related appearance, or gender-related expression, regardless of whether that gender identity, gender-related self-image, gender-related appearance, or gender-related expression is different from that traditionally associated with the person’s sex at birth.

Idaho — excludes disability, creates new criminal offenses, mandates data collection

Idaho Code Ann. § 18-7902

MALICIOUS HARASSMENT DEFINED — PROHIBITED. It shall be unlawful for any person, maliciously and with the specific intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, or national origin, to:
(a)  Cause physical injury to another person; or
(b)  Damage, destroy, or deface any real or personal property of another person; or
(c)  Threaten, by word or act, to do the acts prohibited if there is reasonable cause to believe that any of the acts described in subsections (a) and (b) of this section will occur.
For purposes of this section, “deface” shall include, but not be limited to, cross-burnings or the placing of any word or symbol commonly associated with racial, religious or ethnic terrorism on the property of another person without his or her permission.

Idaho Code Ann. § 18-7903

PENALTIES — CRIMINAL AND CIVIL. (a) Malicious harassment is punishable by imprisonment in the state prison for a period not to exceed five (5) years or by fine not exceeding five thousand dollars ($5,000) or by both.
(b)  In addition to the criminal penalty provided in subsection (a) of this section, there is hereby created a civil cause of action for malicious harassment. A person may be liable to the victim of malicious harassment for both special and general damages, including but not limited to damages for emotional distress, reasonable attorney fees and costs, and punitive damages.
(c)  The penalties provided in this section for malicious harassment do not preclude victims from seeking any other remedies, criminal or civil, otherwise available under law.

Idaho Code Ann. § 67-2915

STATISTICAL REPORT OF MALICIOUS HARASSMENT CRIMES. The director of the Idaho state police shall annually submit to the governor and the chairman of the judiciary and rules committee in the senate and the chairman of the judiciary, rules and administration committee in the house of representatives a report on malicious harassment crimes, as that crime is defined in section 18-7902, Idaho Code. Report content shall be limited to statistical data and shall be presented in conformance with the provisions of section 74-124, Idaho Code.
All city, county and state law enforcement units shall be required to report to the director all incidences of, complaints on, and arrests for malicious harassment crimes within their respective jurisdictions. The director shall develop a standard procedure and shall prescribe and provide a standard form for complete and uniform reporting.

Illinois — includes disability, creates new criminal offenses

720 ll. Comp. Stat. § 5/12-7.1

(a) A person commits hate crime when, by reason of the actual or perceived race, color, creed, religion, ancestry, gender, sexual orientation, physical or mental disability, or national origin of another individual or group of individuals, regardless of the existence of any other motivating factor or factors, he commits assault, battery, aggravated assault, misdemeanor theft, criminal trespass to residence, misdemeanor criminal damage to property, criminal trespass to vehicle, criminal trespass to real property, mob action, disorderly conduct, harassment by telephone, or harassment through electronic communications as these crimes are defined in Sections 12-1, 12-2, 12-3(a), 16-1, 19-4, 21-1, 21-2, 21-3, 25-1, 26-1, 26.5-2, and paragraphs (a)(2) and (a)(5) of Section 26.5-3 of this Code, respectively.

(b) Except as provided in subsection (b-5), hate crime is a Class 4 felony for a first offense and a Class 2 felony for a second or subsequent offense.

(b-5) Hate crime is a Class 3 felony for a first offense and a Class 2 felony for a second or subsequent offense if committed: (1) in a church, synagogue, mosque, or other building, structure, or place used for religious worship or other religious purpose; (2) in a cemetery, mortuary, or other facility used for the purpose of burial or memorializing the dead; (3) in a school or other educational facility, including an administrative facility or public or private dormitory facility of or associated with the school or other educational facility; (4) in a public park or an ethnic or religious community center; (5) on the real property comprising any location specified in clauses (1) through (4) of this subsection (b-5); or (6) on a public way within 1,000 feet of the real property comprising any location specified in clauses (1) through (4) of this subsection (b-5).

(b-10) Upon imposition of any sentence, the trial court shall also either order restitution paid to the victim or impose a fine up to $1,000. In addition, any order of probation or conditional discharge entered following a conviction or an adjudication of delinquency shall include a condition that the offender perform public or community service of no less than 200 hours if that service is established in the county where the offender was convicted of hate crime. In addition, any order of probation or conditional discharge entered following a conviction or an adjudication of delinquency shall include a condition that the offender enroll in an educational program discouraging hate crimes if the offender caused criminal damage to property consisting of religious fixtures, objects, or decorations. The educational program may be administered, as determined by the court, by a university, college, community college, non-profit organization, or the Holocaust and Genocide Commission. Nothing in this subsection (b-10) prohibits courses discouraging hate crimes from being made available online. The court may also impose any other condition of probation or conditional discharge under this Section.

(c) Independent of any criminal prosecution or the result thereof, any person suffering injury to his person or damage to his property as a result of hate crime may bring a civil action for damages, injunction or other appropriate relief. The court may award actual damages, including damages for emotional distress, or punitive damages. A judgment may include attorney’s fees and costs. The parents or legal guardians, other than guardians appointed pursuant to the Juvenile Court Act or the Juvenile Court Act of 1987, of an unemancipated minor shall be liable for the amount of any judgment for actual damages rendered against such minor under this subsection (c) in any amount not exceeding the amount provided under Section 5 of the Parental Responsibility Law.

(d) “Sexual orientation” has the meaning ascribed to it in paragraph (O-1) of Section 1-103 of the Illinois Human Rights Act.

Indiana — includes disability, mandates data collection

Ind. Code § 10-13-3-1

As used in this chapter, “bias crime” means an offense in which the person who commits the offense knowingly or intentionally:
(1) selected the person who was injured; or
(2) damaged or otherwise affected property;
by the offense because of the color, creed, disability, national origin, race, religion, or sexual orientation of the injured person or of the owner or occupant of the affected property or because the injured person or owner or occupant of the affected property was associated with any other recognizable group or affiliation.
Ind. Code § 5-2-5-14.3
(a) A law enforcement agency shall collect information concerning bias crimes.
(b) At least two (2) times each year, a law enforcement agency shall submit information collected under subsection (a) to the Indiana central repository for criminal history information. Information shall be reported in the manner and form prescribed by the department.
(c) At least one (1) time each year, the Indiana central repository for criminal history information shall submit a report that includes a compilation of information obtained under subsection (b) to each law enforcement agency and to the legislative council. A report submitted to a law enforcement agency and the legislative council under this subsection may not contain the name of a person who:
(1) committed or allegedly committed a bias crime; or
(2) was the victim or the alleged victim of a bias crime.
A report submitted to the legislative council under this subsection must be in an electronic format under IC 5-14-6.
(d) Except as provided in subsection (e), information collected, submitted, and reported under this section must be consistent with guidelines established for the acquisition, preservation, and exchange of identification records and information by:
(1) the Attorney General of the United States; or
(2) the Federal Bureau of Investigation;
under 28 U.S.C. 534 and the Hate Crime Statistics Act, as amended (28 U.S. C. 534 note).
(e) Information submitted under subsection (b) and reports issued under subsection (c) shall, in conformity with guidelines prescribed by the department:
(1) be separated in reports on the basis of whether it is an alleged crime, a charged crime, or a crime for which a conviction has been obtained; and
(2) be divided in reports on the basis of whether, in the opinion of the reporting individual and the data collectors, bias was the primary motivation for the crime or only incidental to the crime.
Iowa — includes disability, imposes harsher sentences
Iowa Code Ann. § 729A.2
“Hate crime” means one of the following public offenses when committed against a person or a person’s property because of the person’s race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability, or the person’s association with a person of a certain race, color, religion, ancestry, national origin, political affiliation, sex, sexual orientation, age, or disability:
1. Assault in violation of individual rights under section 708.2C.
2. Violations of individual rights under section 712.9.
3. Criminal mischief in violation of individual rights under section 716.6A.
4. Trespass in violation of individual rights under section 716.8, subsections 3 and 4.
Iowa Code Ann. § 708.2C
1. For the purposes of this chapter, “assault in violation of individual rights” means an assault, as defined in section 708.1, which is a hate crime as defined in section 729A.2.
2. A person who commits an assault in violation of individual rights, with the intent to inflict a serious injury upon another, is guilty of a class “D” felony.
3. A person who commits an assault in violation of individual rights, and who causes bodily injury or mental illness, is guilty of an aggravated misdemeanor.
4. A person who commits an assault in violation of individual rights and uses or displays a dangerous weapon in connection with the assault, is guilty of a class “D” felony.
5. Any other assault in violation of individual rights, except as otherwise provided, is a serious misdemeanor.
Iowa Code Ann. § 712.9
A violation of sections 712.3 through 712.8, which is also a hate crime as defined in section 729A.2, shall be classified and punished as an offense one degree higher than the underlying offense.
Iowa Code Ann. § 716.6A
A violation of sections 716.5 and 716.6, which is also a hate crime as defined in section 729A.2, shall be classified and punished as an offense one degree higher than the underlying offense.
Iowa Code Ann. § 716.8 (subsections 3 and 4)
3. A person who knowingly trespasses on the property of another with the intent to commit a hate crime, as defined in section 729A.2, commits a serious misdemeanor.
4. A person committing a trespass as defined in section 716.7 with the intent to commit a hate crime which results in injury to any person or damage in an amount more than two hundred dollars to anything, animate or inanimate, located thereon or therein commits an aggravated misdemeanor.

Kansas — includes disability, imposes harsher sentences

Kan. Stat. Ann. § 21-6815

(2) Subject to the provisions of subsection (c)(3), the following nonexclusive list of aggravating factors may be considered in determining whether substantial and compelling reasons for departure exist:

[…]

(C) The offense was motivated entirely or in part by the race, color, religion, ethnicity, national origin or sexual orientation of the victim or the offense was motivated by the defendant’s belief or perception, entirely or in part, of the race, color, religion, ethnicity, national origin or sexual orientation of the victim whether or not the defendant’s belief or perception was correct.

Kentucky — excludes disability, imposes harsher sentences

Ky. Rev. Stat. Ann. § 532.031

(1) A person may be found by the sentencing judge to have committed an offense specified below as a result of a hate crime if the person intentionally because of race, color, religion, sexual orientation, or national origin of another individual or group of individuals violates a provision of any one (1) of the following: (a) KRS 508.010, 508.020, 508.025, or 508.030; (b) KRS 508.050 or 508.060; (c) KRS 508.100 or 508.110; (d) KRS 509.020; (e) KRS 510.040, 510.050, 510.060, 510.070, 510.080, 510.090, 510.100, or 510.110; (f) KRS 512.020, 512.050, or 512.060; (g) KRS 513.020, 513.030, or 513.040; or (h) KRS 525.020, 525.050, 525.060, 525.070, or 525.080.

(2) At sentencing, the sentencing judge shall determine if, by a preponderance of the evidence presented at the trial, a hate crime was a primary factor in the commission of the crime by the defendant. If so, the judge shall make a written finding of fact and enter that in the court record and in the judgment rendered against the defendant.

(3) The finding that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the sentencing judge as the sole factor for denial of probation, shock probation, conditional discharge, or other form of nonimposition of a sentence of incarceration.

(4) The finding by the sentencing judge that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the Parole Board in delaying or denying parole to a defendant.

 

Louisiana — includes disability, imposes harsher sentences

La. Stat. Ann. § 14:107.2

A. It shall be unlawful for any person to select the victim of the following offenses against person and property because of actual or perceived race, age, gender, religion, color, creed, disability, sexual orientation, national origin, or ancestry of that person or the owner or occupant of that property or because of actual or perceived membership or service in, or employment with, an organization, or because of actual or perceived employment as a law enforcement officer, firefighter, or emergency medical services personnel: first or second degree murder; manslaughter; battery; aggravated battery; second degree battery; aggravated assault with a firearm; terrorizing; mingling harmful substances; simple or third degree rape, forcible or second degree rape, or aggravated or first degree rape; sexual battery, second degree sexual battery; oral sexual battery; carnal knowledge of a juvenile; indecent behavior with juveniles; molestation of a juvenile or a person with a physical or mental disability; simple, second degree, or aggravated kidnapping; simple or aggravated arson; communicating of false information of planned arson; simple or aggravated criminal damage to property; contamination of water supplies; simple or aggravated burglary; criminal trespass; simple, first degree, or armed robbery; purse snatching; extortion; theft; desecration of graves; institutional vandalism; or assault by drive-by shooting.

B. If the underlying offense named in Subsection A of this Section is a misdemeanor, and the victim of the offense listed in Subsection A of this Section is selected in the manner proscribed by that Subsection, the offender may be fined not more than five hundred dollars or imprisoned for not more than six months, or both. This sentence shall run consecutively to the sentence for the underlying offense.

C. If the underlying offense named in Subsection A of this Section is a felony, and the victim of the offense listed in Subsection A of this Section is selected in the manner proscribed by that Subsection, the offender may be fined not more than five thousand dollars or imprisoned with or without hard labor for not more than five years, or both. This sentence shall run consecutively to the sentence for the underlying offense.

Maine — includes disability, imposes harsher sentences

Me. Rev. Stat. Ann. tit. 17-A, § 1151(8)

8. To permit sentences that do not diminish the gravity of offenses, with reference to the factors, among others, of: A. The age of the victim, particularly of a victim of an advanced age or of a young age who has a reduced ability to self-protect or who suffers more significant harm due to age; and B. The selection by the defendant of the person against whom the crime was committed or of the property that was damaged or otherwise affected by the crime because of the race, color, religion, sex, ancestry, national origin, physical or mental disability, sexual orientation or homelessness of that person or of the owner or occupant of that property.

Maryland — includes disability, creates new criminal offenses, imposes harsher sentences

Md. Code Ann., Crim. Law § 10-304

Because of another’s race, color, religious beliefs, sexual orientation, gender, disability, or national origin, or because another is homeless, a person may not:

(1)(i) commit a crime or attempt to commit a crime against that person;
(ii) damage the real or personal property of that person;
(iii) deface, damage, or destroy, or attempt to deface, damage, or destroy the real or personal property of that person; or
(iv) burn or attempt to burn an object on the real or personal property of that person; or

(2) commit a violation of item (1) of this section that:
(i) except as provided in item (ii) of this item, involves a separate crime that is a felony; or
(ii) results in the death of the victim.

Md. Code Ann., Crim. Law § 10-305

A person may not deface, damage, or destroy, attempt to deface, damage, or destroy, burn or attempt to burn an object on, or damage the real or personal property connected to a building that is publicly or privately owned, leased, or used, including a cemetery, library, meeting hall, recreation center, or school

(1) because a person or group of a particular race, color, religious belief, sexual orientation, gender, disability, or national origin, or because a person or group that is homeless, has contacts or is associated with the building; or

(2) if there is evidence that exhibits animosity against a person or group, because of the race, color, religious beliefs, sexual orientation, gender, disability, or national origin of that person or group or because that person or group is homeless.

Md. Code Ann., Crim. Law § 10-306

In general
(a) Except as provided in subsection (b) of this section, a person who violates this subtitle is guilty of a misdemeanor and on conviction is subject to imprisonment not exceeding 3 years or a fine not exceeding $5,000 or both.

Enhanced penalty
(b)(1) A person who violates § 10-304(2)(i) of this subtitle is guilty of a felony and on conviction is subject to imprisonment not exceeding 10 years or a fine not exceeding $10,000 or both.
(2) A person who violates § 10-304(2)(ii) of this subtitle is guilty of a felony and on conviction is subject to imprisonment not exceeding 20 years or a fine not exceeding $20,000 or both.

Md. Code Ann., Crim. Law § 10-307

A sentence imposed under this subtitle may be separate from and consecutive to or concurrent with a sentence for any crime based on the act establishing the violation of this subtitle.

 

Massachusetts — includes disability, creates new criminal offenses

Mass. Gen. Laws Ann. ch. 265, § 39

(a) Whoever commits an assault or a battery upon a person or damages the real or personal property of a person with the intent to intimidate such person because of such person’s race, color, religion, national origin, sexual orientation, gender identity, or disability shall be punished by a fine of not more than five thousand dollars or by imprisonment in a house of correction for not more than two and one-half years, or by both such fine and imprisonment. The court may also order restitution to the victim in any amount up to three times the value of property damage sustained by the owners of such property. For the purposes of this section, the term “disability” shall have the same meaning as “handicap” as defined in subsection 17 of section one of chapter one hundred and fifty-one B; provided, however, that for purposes of this section, the term “disability” shall not include any condition primarily resulting from the use of alcohol or a controlled substance as defined in section one of chapter ninety-four C.

(b) Whoever commits a battery in violation of this section and which results in bodily injury shall be punished by a fine of not more than ten thousand dollars or by imprisonment in the state prison for not more than five years, or by both such fine and imprisonment. Whoever commits any offense described in this subsection while armed with a firearm, rifle, shotgun, machine gun or assault weapon shall be punished by imprisonment in the state prison for not more than ten years or in the house of correction for not more than two and one-half years. For purposes of this section, “bodily injury” shall mean substantial impairment of the physical condition, including, but not limited to, any burn, fracture of any bone, subdural hematoma, injury to any internal organ, or any injury which occurs as the result of repeated harm to any bodily function or organ, including human skin.

There shall be a surcharge of one hundred dollars on a fine assessed against a defendant convicted of a violation of this section; provided, however, that moneys from such surcharge shall be delivered forthwith to the treasurer of the commonwealth and deposited in the Diversity Awareness Education Trust Fund established under the provisions of section thirty-nine Q of chapter ten. In the case of convictions for multiple offenses, said surcharge shall be assessed for each such conviction.

A person convicted under the provisions of this section shall complete a diversity awareness program designed by the secretary of the executive office of public safety in consultation with the Massachusetts commission against discrimination and approved by the chief justice of the trial court. A person so convicted shall complete such program prior to release from incarceration or prior to completion of the terms of probation, whichever is applicable.

Michigan — excludes disability, creates new criminal offenses

Mich. Comp. Laws § 750.147b 

(1) A person is guilty of ethnic intimidation if that person maliciously, and with specific intent to intimidate or harass another person because of that person’s race, color, religion, gender, or national origin, does any of the following:

(a) Causes physical contact with another person.
(b) Damages, destroys, or defaces any real or personal property of another person.
(c) Threatens, by word or act, to do an act described in subdivision (a) or (b), if there is reasonable cause to believe that an act described in subdivision (a) or (b) will occur.

(2) Ethnic intimidation is a felony punishable by imprisonment for not more than 2 years, or by a fine of not more than $5,000.00, or both.

(3) Regardless of the existence or outcome of any criminal prosecution, a person who suffers injury to his or her person or damage to his or her property as a result of ethnic intimidation may bring a civil cause of action against the person who commits the offense to secure an injunction, actual damages, including damages for emotional distress, or other appropriate relief. A plaintiff who prevails in a civil action brought pursuant to this section may recover both of the following:

(a) Damages in the amount of 3 times the actual damages described in this subsection or $2,000.00, whichever is greater.
(b) Reasonable attorney fees and costs.

Minnesota — includes disability, creates new criminal offenses, imposes harsher sentences

Minn. Stat. Ann. § 609.595

Subdivision 1. Criminal damage to property in the first degree. Whoever intentionally causes damage to physical property of another without the latter’s consent may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both, if:

(1) the damage to the property caused a reasonably foreseeable risk of bodily harm; or
(2) the property damaged belongs to a common carrier and the damage impairs the service to the public rendered by the carrier; or
(3) the damage reduces the value of the property by more than $1,000 measured by the cost of repair and replacement; or
(4) the damage reduces the value of the property by more than $500 measured by the cost of repair and replacement and the defendant has been convicted within the preceding three years of an offense under this subdivision or subdivision 2.

In any prosecution under clause (3), the value of any property damaged by the defendant in violation of that clause within any six-month period may be aggregated and the defendant charged accordingly in applying the provisions of this section; provided that when two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the offenses was committed for all of the offenses aggregated under this paragraph.

Subd. 1a. Criminal damage to property in the second degree.

(a) Whoever intentionally causes damage described in subdivision 2, paragraph (a), because of the property owner’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin is guilty of a felony and may be sentenced to imprisonment for not more than one year and a day or to payment of a fine of not more than $3,000, or both.

(b) In any prosecution under paragraph (a), the value of property damaged by the defendant in violation of that paragraph within any six-month period may be aggregated and the defendant charged accordingly in applying this section. When two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the offenses was committed for all of the offenses aggregated under this paragraph.

Subd. 2. Criminal damage to property in the third degree.

(a) Except as otherwise provided in subdivision 1a, whoever intentionally causes damage to another person’s physical property without the other person’s consent may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both, if the damage reduces the value of the property by more than $500 but not more than $1,000 as measured by the cost of repair and replacement.

(b) Whoever intentionally causes damage to another person’s physical property without the other person’s consent because of the property owner’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both, if the damage reduces the value of the property by not more than $500.

(c) In any prosecution under paragraph (a), the value of property damaged by the defendant in violation of that paragraph within any six-month period may be aggregated and the defendant charged accordingly in applying this section. When two or more offenses are committed by the same person in two or more counties, the accused may be prosecuted in any county in which one of the offenses was committed for all of the offenses aggregated under this paragraph.

Subd. 3. Criminal damage to property in the fourth degree. Whoever intentionally causes damage described in subdivision 2 under any other circumstances is guilty of a misdemeanor.

Minn. Stat. Ann. § 609.2231 (subdivision 4)

Subd. 4. Assaults motivated by bias.

(a) Whoever assaults another because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin may be sentenced to imprisonment for not more than one year or to payment of a fine of not more than $3,000, or both.

(b) Whoever violates the provisions of paragraph (a) within five years of a previous conviction under paragraph (a) is guilty of a felony and may be sentenced to imprisonment for not more than one year and a day or to payment of a fine of not more than $3,000, or both.

Minn. Stat. Ann. § 609.749 (subdivisions 1 through 3)

Subdivision 1. Definition. As used in this section, “stalking” means to engage in conduct which the actor knows or has reason to know would cause the victim under the circumstances to feel frightened, threatened, oppressed, persecuted, or intimidated, and causes this reaction on the part of the victim regardless of the relationship between the actor and victim.

Subd. 1a. No proof of specific intent required. In a prosecution under this section, the state is not required to prove that the actor intended to cause the victim to feel frightened, threatened, oppressed, persecuted, or intimidated, or except as otherwise provided in subdivision 3, paragraph (a), clause (4), or paragraph (b), that the actor intended to cause any other result.

Subd. 1b. Venue. (a) When acts constituting a violation of this section are committed in two or more counties, the accused may be prosecuted in any county in which one of the acts was committed for all acts in violation of this section.

(b) The conduct described in subdivision 2, clauses (4) and (5), may be prosecuted at the place where any call is made or received or, in the case of wireless or electronic communication or any communication made through any available technologies, where the actor or victim resides or in the jurisdiction of the victim’s designated address if the victim participates in the address confidentiality program established by chapter 5B. The conduct described in subdivision 2, clause (2), may be prosecuted where the actor or victim resides. The conduct described in subdivision 2, clause (6), may be prosecuted where any letter, telegram, message, package, or other object is sent or received or, in the case of wireless or electronic communication or communication made through other available technologies, where the actor or victim resides or in the jurisdiction of the victim’s designated address if the victim participates in the address confidentiality program established by chapter 5B.

Subd. 1c. Arrest. For all violations under this section, except a violation of subdivision 2, clause (7), a peace officer may make an arrest under the provisions of section 629.34. A peace officer may not make a warrantless, custodial arrest of any person for a violation of subdivision 2, clause (7).

Subd. 2. Stalking crimes. A person who stalks another by committing any of the following acts is guilty of a gross misdemeanor:

(1) directly or indirectly, or through third parties, manifests a purpose or intent to injure the person, property, or rights of another by the commission of an unlawful act;
(2) follows, monitors, or pursues another, whether in person or through any available technological or other means;
(3) returns to the property of another if the actor is without claim of right to the property or consent of one with authority to consent;
(4) repeatedly makes telephone calls, sends text messages, or induces a victim to make telephone calls to the actor, whether or not conversation ensues;
(5) makes or causes the telephone of another repeatedly or continuously to ring;
(6) repeatedly mails or delivers or causes the delivery by any means, including electronically, of letters, telegrams, messages, packages, through assistive devices for people with vision impairments or hearing loss, or any communication made through any available technologies or other objects;
(7) knowingly makes false allegations against a peace officer concerning the officer’s performance of official duties with intent to influence or tamper with the officer’s performance of official duties; or
(8) uses another’s personal information, without consent, to invite, encourage, or solicit a third party to engage in a sexual act with the person.

For purposes of this clause, “personal information” and “sexual act” have the meanings given in section 617.261, subdivision 7.

Subd. 3. Aggravated violations. (a) A person who commits any of the following acts is guilty of a felony and may be sentenced to imprisonment for not more than five years or to payment of a fine of not more than $10,000, or both:

(1) commits any offense described in subdivision 2 because of the victim’s or another’s actual or perceived race, color, religion, sex, sexual orientation, disability as defined in section 363A.03, age, or national origin;
(2) commits any offense described in subdivision 2 by falsely impersonating another;
(3) commits any offense described in subdivision 2 and possesses a dangerous weapon at the time of the offense;
(4) stalks another, as defined in subdivision 1, with intent to influence or otherwise tamper with a juror or a judicial proceeding or with intent to retaliate against a judicial officer, as defined in section 609.415, or a prosecutor, defense attorney, or officer of the court, because of that person’s performance of official duties in connection with a judicial proceeding; or
(5) commits any offense described in subdivision 2 against a victim under the age of 18, if the actor is more than 36 months older than the victim.
(b) A person who commits any offense described in subdivision 2 against a victim under the age of 18, if the actor is more than 36 months older than the victim, and the act is committed with sexual or aggressive intent, is guilty of a felony and may be sentenced to imprisonment for not more than ten years or to payment of a fine of not more than $20,000, or both.

Mississippi — includes disability, imposes harsher sentences

Miss. Code Ann. § 99-19-301

The penalty for any felony or misdemeanor shall be subject to enhancement as provided in Sections 99-19-301 through 99-19-307 if the felony or misdemeanor was committed because of the actual or perceived race, color, ancestry, ethnicity, religion, national origin or gender of the victim.

Miss. Code Ann. § 99-19-305

(1) Upon conviction or adjudication of guilt of a defendant where notice has been duly given that an enhanced penalty will be sought as provided in Sections 99-19-301 through 99-19-307, the court shall conduct a separate sentencing proceeding to determine the sentence. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge shall summon a jury to determine whether an enhanced penalty should be imposed. If trial by jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. Provided, however, that if the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. However, this subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Mississippi. The state and the defendant or his counsel or both defendant and counsel shall be permitted to present arguments for or against any sentence sought.

(2) In order to impose an enhanced penalty under the provisions of Sections 99-19-301 through 99-19-307, the jury must find beyond a reasonable doubt:
(a) That the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated; and
(b) That the defendant maliciously and with specific intent committed the offense because the victim was within the class delineated.
(3) That the victim was within the class delineated means that the reason the underlying crime was committed was the victim’s actual or perceived race, color, religion, ethnicity, ancestry, national origin or gender.

Miss. Code Ann. § 99-19-307

In the event it is found beyond a reasonable doubt that the offense was committed by reason of the actual or perceived race, color, ancestry, ethnicity, religion, national origin or gender of the victim, then the penalty for the offense may be enhanced by punishment for a term of imprisonment of up to twice that authorized by law for the offense committed, or a fine of up to twice that authorized by law for the offense committed, or both.

Miss. Code Ann. § 99-19-351

The penalty for any felony or misdemeanor which is a crime of violence or the crime of burglary or breaking and entering the dwelling of another shall be subject to enhancement as provided in Sections 99-19-351 through 99-19-357 if the felony or misdemeanor was committed against any victim who is sixty-five (65) years of age or older or who is disabled as described in 42 USCS 12102.

Miss. Code Ann. § 99-19-355

(1) Upon conviction or adjudication of guilt of a defendant where notice has been duly given that an enhanced penalty will be sought as provided in Sections 99-19-351 through 99-19-357, the court shall conduct a separate sentencing proceeding to determine the sentence. The proceeding shall be conducted by the trial judge before the trial jury as soon as practicable. If, through impossibility or inability, the trial jury is unable to reconvene for a hearing on the issue of penalty, having determined the guilt of the accused, the trial judge shall summon a jury to determine whether an enhanced penalty should be imposed. If trial by jury has been waived, or if the defendant pleaded guilty, the sentencing proceeding shall be conducted before a jury impaneled for that purpose. If the defendant enters a plea of guilty and waives trial by jury for the sentencing proceeding, the sentencing proceeding shall be conducted before the trial judge sitting without a jury. In the proceeding, evidence may be presented as to any matter that the court deems relevant to sentence. This subsection shall not be construed to authorize the introduction of any evidence secured in violation of the Constitution of the United States or of the State of Mississippi. The state and the defendant, or his counsel, or both defendant and counsel, shall be permitted to present arguments for or against any sentence sought.

(2) In order to impose an enhanced penalty under the provisions of Sections 99-19-351 through 99-19-357, the jury must find beyond a reasonable doubt:

(a) That the defendant perceived, knew, or had reasonable grounds to know or perceive that the victim was within the class delineated; and
(b) That the defendant maliciously and with specific intent committed the offense to any victim who is sixty-five (65) years of age or older or who is disabled as described in 42 USCS 12102.

Missouri — includes disability, creates new criminal offenses, imposes harsher sentences

Mo. Ann. Stat. § 557.035

1. For all violations of subdivision (1) of subsection 1 of section 569.100 or subdivision (1), (2), (3), (4), (6), (7) or (8) of subsection 1 of section 571.030, which the state believes to be knowingly motivated because of race, color, religion, national origin, sex, sexual orientation or disability of the victim or victims, the state may charge the crime or crimes under this section, and the violation is a class C felony.

2. For all violations of section 565.070; subdivisions (1), (3) and (4) of subsection 1 of section 565.090; subdivision (1) of subsection 1 of section 569.090; subdivision (1) of subsection 1 of section 569.120; section 569.140; or section 574.050; which the state believes to be knowingly motivated because of race, color, religion, national origin, sex, sexual orientation or disability of the victim or victims, the state may charge the crime or crimes under this section, and the violation is a class D felony.

3. The court shall assess punishment in all of the cases in which the state pleads and proves any of the motivating factors listed in this section.

4. For the purposes of this section, the following terms mean: (1) “Disability”, a physical or mental impairment which substantially limits one or more of a person’s major life activities, being regarded as having such an impairment, or a record of having such an impairment; and (2) “Sexual orientation”, male or female heterosexuality, homosexuality or bisexuality by inclination, practice, identity or expression, or having a self-image or identity not traditionally associated with one’s gender.

Montana — excludes disability, creates new criminal offenses, imposes harsher sentences

Mont. Code Ann. § 45-5-221

(1) A person commits the offense of malicious intimidation or harassment when, because of another person’s race, creed, religion, color, national origin, or involvement in civil rights or human rights activities, the person purposely or knowingly, with the intent to terrify, intimidate, threaten, harass, annoy, or offend:
(a) causes bodily injury to another;
(b) causes reasonable apprehension of bodily injury in another; or
(c) damages, destroys, or defaces any property of another or any public property.

(2) For purposes of this section, “deface” includes but is not limited to cross burning or the placing of any word or symbol commonly associated with racial, religious, or ethnic identity or activities on the property of another person without the other person’s permission.

(3) A person convicted of the offense of malicious intimidation or harassment shall be imprisoned in the state prison for a term not to exceed 5 years or be fined an amount not to exceed $5,000, or both.

Mont. Code Ann. § 45-5-222

(1) A person who has pleaded guilty or nolo contendere to or who has been found guilty of any offense, except malicious intimidation or harassment, that was committed because of the victim’s race, creed, religion, color, national origin, or involvement in civil rights or human rights activities or that involved damage, destruction, or attempted destruction of a building regularly used for religious worship, in addition to the punishment provided for commission of the offense, may, if the provisions of 46-1-401 have been complied with, be sentenced to a term of imprisonment of not less than 2 years or more than 10 years, except as provided in 46-18-222.

(2) An additional sentence prescribed by subsection (1) must run consecutively to the sentence, except as provided in 46-18-222.

Nebraska — includes disability, imposes harsher sentences

Neb. Rev. Stat. § 28-111

Any person who commits one or more of the following criminal offenses against a person or a person’s property because of the person’s race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability or because of the person’s association with a person of a certain race, color, religion, ancestry, national origin, gender, sexual orientation, age, or disability shall be punished by the imposition of the next higher penalty classification than the penalty classification prescribed for the criminal offense, unless such criminal offense is already punishable as a Class IB felony or higher classification:

Manslaughter, section 28-305; assault in the first degree, section 28-308; assault in the second degree, section 28-309; assault in the third degree, section 28-310; terroristic threats, section 28-311.01; stalking, section 28-311.03; kidnapping, section 28-313; false imprisonment in the first degree, section 28-314; false imprisonment in the second degree, section 28-315; sexual assault in the first degree, section 28-319; sexual assault in the second or third degree, section 28-320; sexual assault of a child, sections 28-319.01 and 28-320.01; arson in the first degree, section 28-502; arson in the second degree, section 28-503; arson in the third degree, section 28-504; criminal mischief, section 28-519; unauthorized application of graffiti, section 28-524; criminal trespass in the first degree, section 28-520; or criminal trespass in the second degree, section 28-521.

Nevada — includes disability, imposes harsher sentences

Nev. Rev. Stat. § 193.1675

1. Except as otherwise provided in NRS 193.169, any person who willfully violates any provision of NRS 200.030, 200.050, 200.280, 200.310, 200.366, 200.380, 200.400, 200.460 to 200.465, inclusive, paragraph (b) of subsection 2 of NRS 200.471, NRS 200.481 which is punishable as a felony, NRS 200.508, 200.5099, subsection 2 of NRS 200.575, NRS 205.010 to 205.025, inclusive, 205.060, 205.067, 205.075, NRS 205.0832 which is punishable as a felony, NRS 205.220, 205.226, 205.228, 205.270, 206.150, NRS 206.330 which is punishable as a felony or NRS 207.190 because the actual or perceived race, color, religion, national origin, physical or mental disability, sexual orientation or gender identity or expression of the victim was different from that characteristic of the perpetrator may, in addition to the term of imprisonment prescribed by statute for the crime, be punished by imprisonment in the state prison for a minimum term of not less than 1 year and a maximum term of not more than 20 years.

In determining the length of any additional penalty imposed, the court shall consider the following information: (a) The facts and circumstances of the crime; (b) The criminal history of the person; (c) The impact of the crime on any victim; (d) Any mitigating factors presented by the person; and (e) Any other relevant information. The court shall state on the record that it has considered the information described in paragraphs (a) to (e), inclusive, in determining the length of any additional penalty imposed.

2. A sentence imposed pursuant to this section: (a) Must not exceed the sentence imposed for the crime; and (b) Runs consecutively with the sentence prescribed by statute for the crime.

3. This section does not create a separate offense but provides an additional penalty for the primary offense, whose imposition is contingent upon the finding of the prescribed fact.

New Hampshire — includes disability, imposes harsher sentences

N.H. Rev. Stat. § 651:6

I. A convicted person may be sentenced according to paragraph III if the jury also finds beyond a reasonable doubt that such person:

[…]

(f) Was substantially motivated to commit the crime because of hostility towards the victim’s religion, race, creed, sexual orientation as defined in RSA 21:49, national origin or sex;

[…]

(l) Has committed or attempted to commit any of the crimes defined in RSA 637 or RSA 638 against a victim who is 65 years of age or older or who has a physical or mental disability and that in perpetrating the crime, the defendant intended to take advantage of the victim’s age or a physical or mental condition that impaired the victim’s ability to manage his or her property or financial resources or to protect his or her rights or interests;

[…]

III. If authorized by paragraph I or II, and if written notice of the possible application of this section is given the defendant at least 21 days prior to the commencement of jury selection for his or her trial, a defendant may be sentenced to an extended term of imprisonment. An extended term is, for a person convicted of:

(a) Any felony, other than murder or manslaughter, a minimum to be fixed by the court of not more than 10 years and a maximum to be fixed by the court of not more than 30 years;

(b) A misdemeanor, a minimum to be fixed by the court of not more than 2 years and a maximum to be fixed by the court of not more than 5 years;

(c) Manslaughter, a minimum to be fixed by the court of not more than 20 years and a maximum to be fixed by the court of not more than 40 years;

(d) Murder, life imprisonment;

(e) Two or more offenses under RSA 632-A:2, life imprisonment without parole;

(f) A third offense under RSA 632-A:3, life imprisonment; or

(g) Any of the crimes listed under RSA 651:6, I(j), a minimum to be fixed by the court of not less than 90 days and a maximum of not more than one year.

New Jersey — includes disability, creates new criminal offenses, imposes harsher sentences

N.J. Rev. Stat. Ann. § 2C:16-1 — note subsection (a)(3) specifically has been held unconstitutional by the state supreme court in 2015

a. Bias Intimidation. A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title 2C of the New Jersey Statutes; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5,

(1) with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
(2) knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
[(3) under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.]

b. Permissive inference concerning selection of targeted person or property. Proof that the target of the underlying offense was selected by the defendant, or by another acting in concert with the defendant, because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity shall give rise to a permissive inference by the trier of fact that the defendant acted with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.

c. Grading. Bias intimidation is a crime of the fourth degree if the underlying offense referred to in subsection a. is a disorderly persons offense or petty disorderly persons offense. Otherwise, bias intimidation is a crime one degree higher than the most serious underlying crime referred to in subsection a., except that where the underlying crime is a crime of the first degree, bias intimidation is a first-degree crime and the defendant upon conviction thereof may, notwithstanding the provisions of paragraph (1) of subsection a. of N.J.S.2C:43-6, be sentenced to an ordinary term of imprisonment between 15 years and 30 years, with a presumptive term of 20 years.

d. Gender exemption in sexual offense prosecutions. It shall not be a violation of subsection a. if the underlying criminal offense is a violation of chapter 14 of Title 2C of the New Jersey Statutes and the circumstance specified in paragraph (1), (2) or (3) of subsection a. of this section is based solely upon the gender of the victim.

e. Merger. Notwithstanding the provisions of N.J.S.2C:1-8 or any other provision of law, a conviction for bias intimidation shall not merge with a conviction of any of the underlying offenses referred to in subsection a. of this section, nor shall any conviction for such underlying offense merge with a conviction for bias intimidation. The court shall impose separate sentences upon a conviction for bias intimidation and a conviction of any underlying offense.

f. Additional Penalties. In addition to any fine imposed pursuant to N. J.S.2C:43-3 or any term of imprisonment imposed pursuant to N.J.S.2C:43-6, a court may order a person convicted of bias intimidation to one or more of the following:
(1) complete a class or program on sensitivity to diverse communities, or other similar training in the area of civil rights;
(2) complete a counseling program intended to reduce the tendency toward violent and antisocial behavior; and
(3) make payments or other compensation to a community-based program or local agency that provides services to victims of bias intimidation.

g. As used in this section “gender identity or expression” means having or being perceived as having a gender related identity or expression whether or not stereotypically associated with a person’s assigned sex at birth.

h. It shall not be a defense to a prosecution for a crime under this section that the defendant was mistaken as to the race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity of the victim.

New Mexico — includes disability, imposes harsher sentences

N.M. Stat. Ann. § 31-18B-2

As used in the Hate Crimes Act:

A. “age” means sixty years of age or older;

B. “gender identity” means a person’s self-perception, or perception of that person by another, of the person’s identity as a male or female based upon the person’s appearance, behavior or physical characteristics that are in accord or opposed to the person’s physical anatomy, chromosomal sex or sex at birth;

C. “disability” means that the person has a physical or mental disability that substantially limits one or more of that person’s functions, such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working;

D. “motivated by hate” means the commission of a crime with the intent to commit the crime because of the actual or perceived race, religion, color, national origin, ancestry, age, handicapped status, gender, sexual orientation or gender identity of the victim, whether or not the offender’s belief or perception was correct; and

E. “sexual orientation” means heterosexuality, homosexuality or bisexuality, whether actual or perceived.

N.M. Stat. Ann. § 31-18B-3

A. When a separate finding of fact by the court or jury shows beyond a reasonable doubt that an offender committed a noncapital felony motivated by hate, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by one year. An increase in the basic sentence of imprisonment pursuant to the provisions of this subsection shall be in addition to an increase in a basic sentence prescribed for the offense in Section 31-18-17 NMSA 1978. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may suspend or defer any or all of the sentence or grant a conditional discharge, unless otherwise provided by law.

B. If a finding was entered in a previous case that the offender was convicted for committing a crime that was motivated by hate, and if a separate finding of fact by the court or jury shows beyond a reasonable doubt that in the instant case the offender committed a noncapital felony that was motivated by hate, the basic sentence of imprisonment prescribed for the offense in Section 31-18-15 NMSA 1978 may be increased by two years. An increase in the basic sentence of imprisonment pursuant to the provisions of this subsection shall be in addition to an increase in a basic sentence prescribed for the offense in Section 31-18-17 NMSA 1978. A sentence imposed pursuant to the provisions of this subsection may include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may suspend or defer any or all of the sentence, or grant a conditional discharge unless otherwise provided by law.

C. If the case is tried before a jury and if a prima facie case has been established showing that in the commission of the offense the offender was motivated by hate, the court shall submit the issue to the jury by special interrogatory. If the case is tried by the court and if a prima facie case has been established showing that in the commission of the offense the offender was motivated by hate, the court shall decide the issue and shall make a separate finding of fact regarding the issue. If the court or jury determines that the offender is guilty of the crime and finds beyond a reasonable doubt that the offender was motivated by hate, the court shall include that determination in the judgment and sentence.

D. When a petty misdemeanor or a misdemeanor is motivated by hate, the basic sentence of imprisonment prescribed for the offense in Section 31-19-1 NMSA 1978 may include an alternative sentence that requires community service, treatment, education or any combination thereof. The court may suspend or defer any or all of the sentence or grant a conditional discharge, unless otherwise provided by law.

New York — includes disability, imposes harsher sentences

N.Y. Pen. Law § 485.05

1. A person commits a hate crime when he or she commits a specified offense and either: (a) intentionally selects the person against whom the offense is committed or intended to be committed in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct, or (b) intentionally commits the act or acts constituting the offense in whole or in substantial part because of a belief or perception regarding the race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of a person, regardless of whether the belief or perception is correct.

2. Proof of race, color, national origin, ancestry, gender, religion, religious practice, age, disability or sexual orientation of the defendant, the victim or of both the defendant and the victim does not, by itself, constitute legally sufficient evidence satisfying the people’s burden under paragraph (a) or (b) of subdivision one of this section.

3. A “specified offense” is an offense defined by any of the following provisions of this chapter:

section 120.00 (assault in the third degree); section 120.05 (assault in the second degree); section 120.10 (assault in the first degree); section 120.12 (aggravated assault upon a person less than eleven years old); section 120.13 (menacing in the first degree); section 120.14 (menacing in the second degree); section 120.15 (menacing in the third degree); section 120.20 (reckless endangerment in the second degree); section 120.25 (reckless endangerment in the first degree); section 121.12 (strangulation in the second degree); section 121.13 (strangulation in the first degree); subdivision one of section 125.15 (manslaughter in the second degree); subdivision one, two or four of section 125.20 (manslaughter in the first degree); section 125.25 (murder in the second degree); section 120.45 (stalking in the fourth degree); section 120.50 (stalking in the third degree); section 120.55 (stalking in the second degree); section 120.60 (stalking in the first degree); subdivision one of section 130.35 (rape in the first degree); subdivision one of section 130.50 (criminal sexual act in the first degree); subdivision one of section 130.65 (sexual abuse in the first degree); paragraph (a) of subdivision one of section 130.67 (aggravated sexual abuse in the second degree); paragraph (a) of subdivision one of section 130.70 (aggravated sexual abuse in the first degree); section 135.05 (unlawful imprisonment in the second degree); section 135.10 (unlawful imprisonment in the first degree); section 135.20 (kidnapping in the second degree); section 135.25 (kidnapping in the first degree); section 135.60 (coercion in the second degree); section 135.65 (coercion in the first degree); section 140.10 (criminal trespass in the third degree); section 140.15 (criminal trespass in the second degree); section 140.17 (criminal trespass in the first degree); section 140.20 (burglary in the third degree); section 140.25 (burglary in the second degree); section 140.30 (burglary in the first degree); section 145.00 (criminal mischief in the fourth degree); section 145.05 (criminal mischief in the third degree); section 145.10 (criminal mischief in the second degree); section 145.12 (criminal mischief in the first degree); section 150.05 (arson in the fourth degree); section 150.10 (arson in the third degree); section 150.15 (arson in the second degree); section 150.20 (arson in the first degree); section 155.25 (petit larceny); section 155.30 (grand larceny in the fourth degree); section 155.35 (grand larceny in the third degree); section 155.40 (grand larceny in the second degree); section 155.42 (grand larceny in the first degree); section 160.05 (robbery in the third degree); section 160.10 (robbery in the second degree); section 160.15 (robbery in the first degree); section 240.25 (harassment in the first degree); subdivision one, two or four of section 240.30 (aggravated harassment in the second degree);

or any attempt or conspiracy to commit any of the foregoing offenses.

4. For purposes of this section: (a) the term “age” means sixty years old or more; (b) the term “disability” means a physical or mental impairment that substantially limits a major life activity.

N.Y. Pen. Law § 485.10

1. When a person is convicted of a hate crime pursuant to this article, and the specified offense is a violent felony offense, as defined in section 70.02 of this chapter, the hate crime shall be deemed a violent felony offense.

2. When a person is convicted of a hate crime pursuant to this article and the specified offense is a misdemeanor or a class C, D or E felony, the hate crime shall be deemed to be one category higher than the specified offense the defendant committed, or one category higher than the offense level applicable to the defendant’s conviction for an attempt or conspiracy to commit a specified offense, whichever is applicable.

3. Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class B felony:

(a) the maximum term of the indeterminate sentence must be at least six years if the defendant is sentenced pursuant to section 70.00 of this chapter;
(b) the term of the determinate sentence must be at least eight years if the defendant is sentenced pursuant to section 70.02 of this chapter;
(c) the term of the determinate sentence must be at least twelve years if the defendant is sentenced pursuant to section 70.04 of this chapter;
(d) the maximum term of the indeterminate sentence must be at least four years if the defendant is sentenced pursuant to section 70.05 of this chapter; and
(e) the maximum term of the indeterminate sentence or the term of the determinate sentence must be at least ten years if the defendant is sentenced pursuant to section 70.06 of this chapter.

4. Notwithstanding any other provision of law, when a person is convicted of a hate crime pursuant to this article and the specified offense is a class A-1 felony, the minimum period of the indeterminate sentence shall be not less than twenty years.

5. In addition to any of the dispositions authorized by this chapter, the court may require as part of the sentence imposed upon a person convicted of a hate crime pursuant to this article, that the defendant complete a program, training session or counseling session directed at hate crime prevention and education, where the court determines such program, training session or counseling session is appropriate, available and was developed or authorized by the court or local agencies in cooperation with organizations serving the affected community.

North Carolina — excludes disability, imposes harsher sentences

N.C. Gen. Stat. § 14-3 (subsection c)

(c) If any Class 2 or Class 3 misdemeanor is committed because of the victim’s race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class 1 misdemeanor. If any Class A1 or Class 1 misdemeanor offense is committed because of the victim’s race, color, religion, nationality, or country of origin, the offender shall be guilty of a Class H felony.

N.C. Gen. Stat. § 14-401.14

(a) If a person shall, because of race, color, religion, nationality, or country of origin, assault another person, or damage or deface the property of another person, or threaten to do any such act, he shall be guilty of a Class 1 misdemeanor.

(b) A person who assembles with one or more persons to teach any technique or means to be used to commit any act in violation of subsection (a) of this section is guilty of a Class 1 misdemeanor.

North Dakota — excludes disability, creates new criminal offenses

N.D. Cent. Code § 12.1-14-04

A person is guilty of a class B misdemeanor if, whether or not acting under color of law, he, by force, or threat of force or by economic coercion, intentionally:

1. Injures, intimidates, or interferes with another because of his sex, race, color, religion, or national origin and because he is or has been exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.

2. Injures, intimidates, or interferes with another because of his sex, race, color, religion, or national origin in order to intimidate him or any other person from exercising or attempting to exercise his right to full and equal enjoyment of any facility open to the public.

Ohio — excludes disability, creates new criminal offenses, imposes harsher sentences

Ohio Rev. Code § 2927.12

(A) No person shall violate section 2903.21, 2903.22, 2909.06, or 2909.07, or division (A)(3), (4), or (5) of section 2917.21 of the Revised Code by reason of the race, color, religion, or national origin of another person or group of persons.

(B) Whoever violates this section is guilty of ethnic intimidation. Ethnic intimidation is an offense of the next higher degree than the offense the commission of which is a necessary element of ethnic intimidation.

Oklahoma — includes disability, creates new criminal offenses, requires data collection

Okla. Stat. tit. 21, § 850

A. No person shall maliciously and with the specific intent to intimidate or harass another person because of that person’s race, color, religion, ancestry, national origin or disability:
1. Assault or batter another person;
2. Damage, destroy, vandalize or deface any real or personal property of another person; or
3. Threaten, by word or act, to do any act prohibited by paragraph 1 or 2 of this subsection if there is reasonable cause to believe that such act will occur.

B. No person shall maliciously and with specific intent to incite or produce, and which is likely to incite or produce, imminent violence, which violence would be directed against another person because of that person’s race, color, religion, ancestry, national origin or disability, make or transmit, cause or allow to be transmitted, any telephonic, computerized, or electronic message.

C. No person shall maliciously and with specific intent to incite or produce, and which is likely to incite or produce, imminent violence, which violence would be directed against another person because of that person’s race, color, religion, ancestry, national origin or disability, broadcast, publish, or distribute, cause or allow to be broadcast, published or distributed, any message or material.

D. Any person convicted of violating any provision of subsections A, B or C of this section shall be guilty of a misdemeanor on a first offense and a felony punishable by not more than ten (10) years incarceration in the custody of the Department of Corrections for a second or subsequent offense. The fine for a felony violation of this section shall not exceed Ten Thousand Dollars ($10,000.00). Furthermore, said person shall be civilly liable for any damages resulting from any violation of this section.

E. Upon conviction, any person guilty of a misdemeanor in violation of this section shall be punishable by the imposition of a fine not exceeding One Thousand Dollars ($1,000.00), or by imprisonment in the county jail for a period of not more than one (1) year, or by both such fine and imprisonment.

F. The Oklahoma State Bureau of Investigation shall develop a standard system for state and local law enforcement agencies to report incidents of crime which are apparently directed against members of racial, ethnic, religious groups or other groups specified by this section. The Oklahoma State Bureau of Investigation shall promulgate rules, regulations and procedures necessary to develop, implement and maintain a standard system for the collection and reporting of hate crime data. All state, county, city and town law enforcement agencies shall submit a monthly report to the Oklahoma State Bureau of Investigation on forms prescribed by the Bureau. The report shall contain the number and nature of the offenses committed within their respective jurisdictions, the disposition of such matters and any other information the Bureau may require, respecting information relating to the cause and prevention of crime, recidivism, the rehabilitation of criminals and the proper administration of criminal justice.

G. No person, partnership, company or corporation that installs telephonic, computerized, or electronic message equipment shall be required to monitor the use of such equipment for possible violations of this section, nor shall such person, partnership, company or corporation be held criminally or civilly liable for the use by another person of the equipment in violation of this section, unless the person, partnership, company or corporation that installed the equipment had prior actual knowledge that the equipment was to be used in violation of this section.

Oregon — includes disability, creates new criminal offenses

Or. Rev. Stat. § 166.165

(1) Two or more persons acting together commit the crime of intimidation in the first degree, if the persons:

(a)(A) Intentionally, knowingly or recklessly cause physical injury to another person because of the actors’ perception of that person’s race, color, religion, sexual orientation, disability or national origin; or (B) With criminal negligence cause physical injury to another person by means of a deadly weapon because of the actors’ perception of that person’s race, color, religion, sexual orientation, disability or national origin;

(b) Intentionally, because of the actors’ perception of another person’s race, color, religion, sexual orientation, disability or national origin, place another person in fear of imminent serious physical injury; or

(c) Commit such acts as would constitute the crime of intimidation in the second degree, if undertaken by one person acting alone.

(2) Intimidation in the first degree is a Class C felony.

Or. Rev. Stat. § 166.155

(1) A person commits the crime of intimidation in the second degree if the person:

(a) Tampers or interferes with property, having no right to do so nor reasonable ground to believe that the person has such right, with the intent to cause substantial inconvenience to another because of the person’s perception of the other’s race, color, religion, sexual orientation, disability or national origin;
(b) Intentionally subjects another to offensive physical contact because of the person’s perception of the other’s race, color, religion, sexual orientation, disability or national origin; or
(c) Intentionally, because of the person’s perception of race, color, religion, sexual orientation, disability or national origin of another or of a member of the other’s family, subjects the other person to alarm by threatening:
(A) To inflict serious physical injury upon or to commit a felony affecting the other person, or a member of the person’s family; or
(B) To cause substantial damage to the property of the other person or of a member of the other person’s family.

(2) Intimidation in the second degree is a Class A misdemeanor.

(3) For purposes of this section, “property” means any tangible personal property or real property.

Pennsylvania — excludes disability, creates new criminal offenses, imposes harsher sentences

18 Pa. Cons. Stat. § 2710 

(a) Offense defined.–A person commits the offense of ethnic intimidation if, with malicious intention toward the race, color, religion or national origin of another individual or group of individuals, he commits an offense under any other provision of this article or under Chapter 33 (relating to arson, criminal mischief and other property destruction) exclusive of section 3307 (relating to institutional vandalism) or under section 3503 (relating to criminal trespass) with respect to such individual or his or her property or with respect to one or more members of such group or to their property.

(b) Grading.–An offense under this section shall be classified as a misdemeanor of the third degree if the other offense is classified as a summary offense. Otherwise, an offense under this section shall be classified one degree higher in the classification specified in section 106 (relating to classes of offenses) than the classification of the other offense.

(c) Definition.–As used in this section “malicious intention” means the intention to commit any act, the commission of which is a necessary element of any offense referred to in subsection (a) motivated by hatred toward the race, color, religion or national origin of another individual or group of individuals.

Rhode Island — includes disability, imposes harsher sentences

12 R.I. Gen. Laws § 12-19-38

(a) If any person has been convicted of a crime charged by complaint, information, or indictment in which he or she intentionally selected the person against whom the offense is committed or selected the property that is damaged or otherwise affected by the offense because of the actor’s hatred or animus toward the actual or perceived disability, religion, color, race, national origin or ancestry, sexual orientation, or gender of that person or the owner or occupant of that property, he or she shall be subject to the penalties provided in this section.

(b) Whenever it appears that a person may be subject to the Hate Crime Sentencing Act, the prosecuting agency, in no case later than the pretrial conference, shall file with the court a notice specifying that the defendant, upon conviction, is subject to the imposition of sentencing in accordance with this section.

(c) For misdemeanor offenses, upon any plea of guilty or nolo contendere or verdict or finding of guilty of the defendant, the district court shall conduct a sentencing hearing. At the hearing, the court shall permit the prosecuting agency and the defense to present additional evidence relevant to the determination of whether the defendant intentionally selected the person against whom the offense is committed, or selected the property that is damaged, or otherwise affected by the offense because of his or her hatred or animus toward the actual or perceived race, religion, color, disability, national origin or ethnicity, gender, or sexual orientation of that person or the owner or occupant of that property. If the finder of fact at the hearing, or in the case of a plea of guilty or nolo contendere, the district court at sentencing, determines beyond a reasonable doubt that the defendant’s actions were so motivated, he or she shall be sentenced to not less than thirty (30) days mandatory imprisonment, nor more than one year imprisonment for that crime: and for this penalty, he or she shall not be afforded the provisions of filing, suspension of sentence, or probation.

(d) For felony offenses and for misdemeanor offenses in which the defendant claims a jury trial either in the first instance or by appeal, upon any plea of guilt or nolo contendere or verdict or finding of guilt of the defendant, the court shall conduct a sentencing hearing. At the hearing, the court shall permit the prosecuting agency and the defense to present additional evidence to the jury relevant to the determination of whether the defendant intentionally selected the person against whom the offense is committed, or selected the property that is damaged, or otherwise affected by the offense because of his or her hatred or animus toward the actual or perceived race, religion, color, disability, national origin or ethnicity, gender, or sexual orientation of that person or the owner or occupant of that property. If the jury at the hearing, or in the case of a plea of guilty or nolo contendere, the court at sentencing, determines beyond a reasonable doubt that the defendant’s actions were so motivated, he or she shall be sentenced for a misdemeanor in accordance with subsection (c) of this section and for a felony by the court to an additional, consecutive term of imprisonment for not less than one year nor more than five (5) years, but in no case, more than double the original penalty for the crime.

South Carolina — no general hate crimes laws

South Dakota — excludes disability, creates new criminal offenses

S.D. Codified Laws § 22-19B-1

No person may maliciously and with the specific intent to intimidate or harass any person or specific group of persons because of that person’s or group of persons’ race, ethnicity, religion, ancestry, or national origin:

(1) Cause physical injury to another person; or
(2) Deface any real or personal property of another person; or
(3) Damage or destroy any real or personal property of another person; or
(4) Threaten, by word or act, to do the acts prohibited if there is reasonable cause to believe that any of the acts prohibited in subdivision (1), (2), or (3) of this section will occur.

A violation of this section is a Class 6 felony.

Tennessee — includes disability, imposes harsher sentences

Tenn. Code Ann. § 40-35-114 (subdivision 17)

If appropriate for the offense and if not already an essential element of the offense, the court shall consider, but is not bound by, the following advisory factors in determining whether to enhance a defendant’s sentence:

[…]

(17) The defendant intentionally selected the person against whom the crime was committed or selected the property that was damaged or otherwise affected by the crime, in whole or in part, because of the defendant’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin, ancestry or gender of that person or the owner or occupant of that property; however, this subdivision (17) should not be construed to permit the enhancement of a sexual offense on the basis of gender selection alone;

Texas — includes disability, imposes harsher sentences

Texas Code of Criminal Procedure, Article 42.014

(a) In the trial of an offense under Title 51, Penal Code, or Section 28.02, 28.03, or 28.08, Penal Code, the judge shall make an affirmative finding of fact and enter the affirmative finding in the judgment of the case if at the guilt or innocence phase of the trial, the judge or the jury, whichever is the trier of fact, determines beyond a reasonable doubt that the defendant intentionally selected the person against whom the offense was committed or intentionally selected property damaged or affected as a result of the offense because of the defendant’s bias or prejudice against a group identified by race, color, disability, religion, national origin or ancestry, age, gender, or sexual preference.

(b) The sentencing judge may, as a condition of punishment, require attendance in an educational program to further tolerance and acceptance of others.

(c) In this article, “sexual preference” has the following meaning only: a preference for heterosexuality, homosexuality, or bisexuality.

Tex. Pen. Code § 12.47 

(a) If an affirmative finding under Article 42.014, Code of Criminal Procedure, is made in the trial of an offense other than a first degree felony or a Class A misdemeanor, the punishment for the offense is increased to the punishment prescribed for the next highest category of offense. If the offense is a Class A misdemeanor, the minimum term of confinement for the offense is increased to 180 days. This section does not apply to the trial of an offense of injury to a disabled individual under § 22.04, if the affirmative finding in the case under Article 42.014, Code of Criminal Procedure, shows that the defendant intentionally selected the victim because the victim was disabled.

(b) The attorney general, if requested to do so by a prosecuting attorney, may assist the prosecuting attorney in the investigation or prosecution of an offense committed because of bias or prejudice. The attorney general shall designate one individual in the division of the attorney general’s office that assists in the prosecution of criminal cases to coordinate responses to requests made under this subsection.

Utah — does not explicitly include or exclude disability, imposes harsher sentences, has near-useless hate crimes law (does not define hate crime as bias or prejudice-related, does not specify which groups of people or characteristics could cause a crime to be a hate crime, does not change criminal penalties)

Utah Code § 76-3-203.3

As used in this section:

(1) “Primary offense” means those offenses provided in Subsection (4).

(2)(a) A person who commits any primary offense with the intent to intimidate or terrorize another person or with reason to believe that his action would intimidate or terrorize that person is subject to Subsection (2)(b).
(b)(i) A class C misdemeanor primary offense is a class B misdemeanor; and
(ii) a class B misdemeanor primary offense is a class A misdemeanor.

(3) “Intimidate or terrorize” means an act which causes the person to fear for his physical safety or damages the property of that person or another. The act must be accompanied with the intent to cause or has the effect of causing a person to reasonably fear to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States.

(4) Primary offenses referred to in Subsection (1) are the misdemeanor offenses for:
(a) assault and related offenses under Sections 76-5-102, 76-5-102.4, 76-5-106, 76-5-107, and 76-5-108;
(b) any misdemeanor property destruction offense under Sections 76-6-102 and 76-6-104, and Subsection 76-6-106(2)(b);
(c) any criminal trespass offense under Sections 76-6-204 and 76-6-206;
(d) any misdemeanor theft offense under Section 76-6-412;
(e) any offense of obstructing government operations under Sections 76-8-301, 76-8-302, 76-8-304, 76-8-305, 76-8-306, 76-8-307, 76-8-308, and 76-8-313;
(f) any offense of interfering or intending to interfere with activities of colleges and universities under Title 76, Chapter 8, Part 7, Colleges and Universities;
(g) any misdemeanor offense against public order and decency as defined in Title 76, Chapter 9, Part 1, Breaches of the Peace and Related Offenses;
(h) any telephone abuse offense under Title 76, Chapter 9, Part 2, Telephone Abuse;
(i) any cruelty to animals offense under Section 76-9-301; and
(j) any weapons offense under Section 76-10-506.

(5) This section does not affect or limit any individual’s constitutional right to the lawful expression of free speech or other recognized rights secured by the Constitution or laws of the state or by the Constitution or laws of the United States.

Utah Code § 76-3-203.4

(1) The sentencing judge or the Board of Pardons and Parole shall consider in their deliberations as an aggravating factor the public harm resulting from the commission of the offense, including the degree to which the offense is likely to incite community unrest or cause members of the community to reasonably fear for their physical safety or to freely exercise or enjoy any right secured by the Constitution or laws of the state or by the Constitution or laws of the United States.

(2) The sentencing judge or the Board of Pardons and Parole shall also consider whether the penalty for the offense is already increased by other existing provisions of law.

(3) This section does not affect or limit any individual’s constitutional right to the lawful expression of free speech or other recognized rights secured by the Constitution or laws of the state or by the Constitution or laws of the United States.

Vermont — includes disability, imposes harsher sentences

Vt. Stat. Ann. tit. 13, § 1455

A person who commits, causes to be committed, or attempts to commit any crime and whose conduct is maliciously motivated by the victim’s actual or perceived race, color, religion, national origin, sex, ancestry, age, service in the U.S. Armed Forces, disability as defined by 21 V.S.A. § 495d(5), sexual orientation, or gender identity shall be subject to the following penalties:

(1) If the maximum penalty for the underlying crime is one year or less, the penalty for a violation of this section shall be imprisonment for not more than two years or a fine of not more than $2,000.00, or both.

(2) If the maximum penalty for the underlying crime is more than one year but less than five years, the penalty for a violation of this section shall be imprisonment for not more than five years or a fine of not more than $10,000.00, or both.

(3) If the maximum penalty for the underlying crime is five years or more, the penalty for the underlying crime shall apply; however, the court shall consider the motivation of the defendant as a factor in sentencing.

Virginia — excludes disability, imposes harsher sentences

Va. Code Ann. § 18.2-57 (subsections A and B)

A. Any person who commits a simple assault or assault and battery is guilty of a Class 1 misdemeanor, and if the person intentionally selects the person against whom a simple assault is committed because of his race, religious conviction, color or national origin, the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

B. However, if a person intentionally selects the person against whom an assault and battery resulting in bodily injury is committed because of his race, religious conviction, color or national origin, the person is guilty of a Class 6 felony, and the penalty upon conviction shall include a term of confinement of at least six months, 30 days of which shall be a mandatory minimum term of confinement.

Washington — includes disability, creates new criminal offenses

Wash. Rev. Code Ann. § 9A 36.080

(1) A person is guilty of malicious harassment if he or she maliciously and intentionally commits one of the following acts because of his or her perception of the victim’s race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap:

(a) Causes physical injury to the victim or another person;
(b) Causes physical damage to or destruction of the property of the victim or another person; or
(c) Threatens a specific person or group of persons and places that person, or members of the specific group of persons, in reasonable fear of harm to person or property. The fear must be a fear that a reasonable person would have under all the circumstances.

For purposes of this section, a “reasonable person” is a reasonable person who is a member of the victim’s race, color, religion, ancestry, national origin, gender, or sexual orientation, or who has the same mental, physical, or sensory handicap as the victim. Words alone do not constitute malicious harassment unless the context or circumstances surrounding the words indicate the words are a threat. Threatening words do not constitute malicious harassment if it is apparent to the victim that the person does not have the ability to carry out the threat.

(2) In any prosecution for malicious harassment, unless evidence exists which explains to the trier of fact’s satisfaction that the person did not intend to threaten the victim or victims, the trier of fact may infer that the person intended to threaten a specific victim or group of victims because of the person’s perception of the victim’s or victims’ race, color, religion, ancestry, national origin, gender, sexual orientation, or mental, physical, or sensory handicap if the person commits one of the following acts:

(a) Burns a cross on property of a victim who is or whom the actor perceives to be of African American heritage; or
(b) Defaces property of a victim who is or whom the actor perceives to be of Jewish heritage by defacing the property with a swastika.

This subsection only applies to the creation of a reasonable inference for evidentiary purposes. This subsection does not restrict the state’s ability to prosecute a person under subsection (1) of this section when the facts of a particular case do not fall within (a) or (b) of this subsection.

(3) It is not a defense that the accused was mistaken that the victim was a member of a certain race, color, religion, ancestry, national origin, gender, or sexual orientation, or had a mental, physical, or sensory handicap.

(4) Evidence of expressions or associations of the accused may not be introduced as substantive evidence at trial unless the evidence specifically relates to the crime charged. Nothing in this chapter shall affect the rules of evidence governing impeachment of a witness.

(5) Every person who commits another crime during the commission of a crime under this section may be punished and prosecuted for the other crime separately.

(6) For the purposes of this section: (a) “Sexual orientation” has the same meaning as in RCW 49.60.040. (b) “Threat” means to communicate, directly or indirectly, the intent to: (i) Cause bodily injury immediately or in the future to the person threatened or to any other person; or (ii) Cause physical damage immediately or in the future to the property of a person threatened or that of any other person.

(7) Malicious harassment is a class C felony.

(8) The penalties provided in this section for malicious harassment do not preclude the victims from seeking any other remedies otherwise available under law.

(9) Nothing in this section confers or expands any civil rights or protections to any group or class identified under this section, beyond those rights or protections that exist under the federal or state Constitution or the civil laws of the state of Washington.

West Virginia — excludes disability, creates new criminal offenses, imposes harsher sentences

W. Va. Code § 61-6-21

(a) All persons within the boundaries of the state of West Virginia have the right to be free from any violence, or intimidation by threat of violence, committed against their persons or property because of their race, color, religion, ancestry, national origin, political affiliation or sex.

(b) If any person does by force or threat of force, willfully injure, intimidate or interfere with, or attempt to injure, intimidate or interfere with, or oppress or threaten any other person in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States, because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex, he or she shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.

(c) If any person conspires with another person or persons to willfully injure, oppress, threaten, or intimidate or interfere with any citizen because of such other person’s race, color, religion, ancestry, national origin, political affiliation or sex in the free exercise or enjoyment of any right or privilege secured to him or her by the Constitution or laws of the state of West Virginia or by the Constitution or laws of the United States, and in willful furtherance thereof to assemble with one or more persons for the purpose of teaching any technique or means capable of causing property damage, bodily injury or death when such person or persons intend to employ such techniques or means to violate this section, each such person shall be guilty of a felony, and, upon conviction, shall be fined not more than five thousand dollars or imprisoned not more than ten years, or both.

(d) The fact that a person committed a felony or misdemeanor, or attempted to commit a felony, because of the victim’s race, color, religion, ancestry, national origin, political affiliation or sex, shall be considered a circumstance in aggravation of any crime in imposing sentence.

(e) Nothing contained in this section makes unlawful the teaching of any technique in self-defense.

(f) Nothing in this section shall be construed so as to make it unlawful nor to prohibit nor, in any manner, to impede or to interfere with any person in conducting labor union or labor union organizing activities.

Wisconsin — includes disability, imposes harsher sentences

Wis. Stat. Ann. § 939.645

(1) If a person does all of the following, the penalties for the underlying crime are increased as provided in sub. (2):

(a) Commits a crime under chs. 939 to 948.
(b) Intentionally selects the person against whom the crime under par. (a) is committed or selects the property that is damaged or otherwise affected by the crime under par. (a) in whole or in part because of the actor’s belief or perception regarding the race, religion, color, disability, sexual orientation, national origin or ancestry of that person or the owner or occupant of that property, whether or not the actor’s belief or perception was correct.

(2)(a) If the crime committed under sub. (1) is ordinarily a misdemeanor other than a Class A misdemeanor, the revised maximum fine is $10,000 and the revised maximum term of imprisonment is one year in the county jail.
(b) If the crime committed under sub. (1) is ordinarily a Class A misdemeanor, the penalty increase under this section changes the status of the crime to a felony and the revised maximum fine is $10,000 and the revised maximum term of imprisonment is 2 years.
(c) If the crime committed under sub. (1) is a felony, the maximum fine prescribed by law for the crime may be increased by not more than $5,000 and the maximum term of imprisonment prescribed by law for the crime may be increased by not more than 5 years.

(3) This section provides for the enhancement of the penalties applicable for the underlying crime. The court shall direct that the trier of fact find a special verdict as to all of the issues specified in sub. (1). (4) This section does not apply to any crime if proof of race, religion, color, disability, sexual orientation, national origin or ancestry or proof of any person’s perception or belief regarding another’s race, religion, color, disability, sexual orientation, national origin or ancestry is required for a conviction for that crime.

Wyoming — no hate crimes laws

 

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+1 (202) 618-0187 (voice or text)
lydia@autistichoya.com

About

I am an educator, activist/organizer, speaker/trainer, policy advocate, and writer focused on violence against multiply-marginalized disabled people.
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