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Hating On Hate Crime Legislation

I’m sorry, but this is a sloppy statute … and a slippery slope.

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South Carolina’s “Republican” supermajority has overwhelmingly approved a hate crimes bill that would duplicate federal statutes aimed at criminalizing thought.

Dozens of GOP lawmakers – including House speaker Murrell Smith and speaker pro tempore Tommy Pope – joined Democrats in supporting this legislation, which would impose “penalty enhancements for certain crimes” in which victims were intentionally selected based on “certain factors.”

What factors?

The bill – H. 3104 – would add penalties for criminal acts in which victims were “intentionally selected, in whole or in part, because of the person’s belief or perception regarding the victim’s race, color, religion, sex, gender, national origin, sexual orientation, or physical or mental disability.”

Like the underlying violent crime, such “intentional selection” must be proved beyond a reasonable doubt by prosecutors during a separate hearing following the original trial.



“The court shall permit the prosecuting agency and the defense to present evidence relevant to the (hate crimes) determination,” the proposed statute noted.

Thought policing, in other words …

Beyond adding a time-consuming wrinkle to an already backlogged criminal justice system, reaching such “determinations” could prove problematic on another front …

While the proposed bill would add multiple penalties for purported “hate crimes” – including the assignment of civil liability, $10,000 in additional criminal fines and up to five years in prison – its current language contains absolutely zero guidance as to how these discriminatory factors should be defined.

It merely compels “the court with competent jurisdiction over the underlying offense (to) instruct the trier of fact to find a special verdict as to a violation of the provisions of this section.”

Again, though … based on what definitions?

This is opening Pandora’s box – creating a breeding ground for selective enforcement.

To be clear: I have no problem with lawmakers buttressing the anemic sentences South Carolina judges are currently doling out for violent crimes in the Palmetto State. Regular readers of this news outlet are well aware sentencing reform (i.e. longer jail terms for violent criminals) is a key plank in our judicial reform agenda.

But is criminalizing thought via undefined standards really the answer? I think not ...

Also, state-level hate crime laws are duplicative. The federal government already has expansive hate crime statutes on its books (18 U.S. Code § 249) - and as the case of convicted white supremacist murderer Dylann Roof made abundantly clear, federal charges always preempt state charges (especially in high-profile cases).

The biggest reason to oppose this proposed statute, though? It is a dangerous incursion on liberty.

"I’ve often written that 'crime is crime' and that some degree of hate is required for the commission of most violent crimes," I noted the last time this legislation began advancing through the S.C. General Assembly. "Adding superfluous charges in the hopes of criminalizing the thought processes that ostensibly led to their commission strikes me as silly – to say nothing of creating a slippery slope toward a full-scale assault on the First Amendment."

South Carolina needs tougher penalties on violent crimes. And I'm open to most any vehicle that gets us there.

But this is a sloppy statute ... and a slippery slope. And if the Palmetto State is going to go down this road (which I am not suggesting it should), it better damn well tighten up its "hate crime" definitions to avoid the pitfalls of selective enforcement.



Will Folks on phone
Will Folks (Brett Flashnick)

Will Folks is the founding editor of the news outlet you are currently reading. Prior to founding FITSNews, he served as press secretary to the governor of South Carolina. He lives in the Midlands region of the state with his wife and seven children.



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The Colonel Top fan March 14, 2023 at 10:51 am

Stupid – crime is crime regardless of your reasoning. Since the state is not required to prove motive anyway, why does your motive matter? By this reasoning, Elick should get a lighter sentence for the thefts from his law group because he “loved” his partners. Shoot, for that matter, maybe he should get an award for stealing money from Randolph…

Criminally Incorrect March 14, 2023 at 3:05 pm

“crime is crime regardless of your reasoning.”

You wouldn’t make it past the first year in law school.

S March 15, 2023 at 12:35 pm

This is disappointing to read. Why would you not want someone who committed a hate crime to be punished for it? Crime is not just crime. This is violence simply for existing.

Queer women are raped to show they’re only gay bc they haven’t had good d—k. Openly gay men are assaulted, just for being gay. At least being queer is easy to hide. Do you have any idea how dangerous it is to be trans, right here in our very own SC? Or the hatred towards people who are religious, but not Christian? And God forbid you’re not white.

These things are part of *who we are* and cannot be changed (nor should we ever feel forced to). Vastly different from targeting a specific person or a crime of opportunity.

While I don’t know anything about you, the writer, if you’re a cis white man, you are looking at these issues from the perspective of the people in power. You may mean well, but you are not out here seeing the reality we, the people hate crimes are committed against, face every day.

I hope you reflect on why you think a hate crime should not be prosecuted to the fullest extent of the law, Federal AND State.

I cannot subscribe to FITSNews knowing you don’t think I, and so many other people, should have that protection. I hope you care more than this article makes it seem.

lminor Top fan March 20, 2023 at 3:33 pm

Not so. Most crimes require proof of “mens rea” (bad intent), but in no other case do we inquire into the motivation behind a crime.

RC March 14, 2023 at 2:29 pm

So how does this statute compare to other states’ with hate crime laws? If written similarly, are they seeing the hypothetical issue you are worrying about? Or how is the federal law written? It appears you’re ok with the state not having their own law since the federal law supercedes it, so presumably it’s not creating the hypothetical scenario you envisioned. I’m sure this is all research you’ve done, right?

Nanker Phelge March 14, 2023 at 5:24 pm

Cool. Then let’s get rid of all laws that address “intent” in crimes.

Intent to distribute? Gone. Was a crime committed purposefully, negligently, or recklessly? Gone. That’s “thought police” stuff, right? Just throw the book at everyone. Or not.

Fitslogic, people!

lminor Top fan March 20, 2023 at 3:35 pm

Intent is not the same thing as motivation.

lminor Top fan March 20, 2023 at 3:34 pm

This law probably violates the 14th Amendment (equal protection).


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