CRIME AND CRIMINALS;

You asked for information on states with hate crime statutes that cover crimes against people with physical disabilities.

SUMMARY

We found 23 jurisdictions (22 states and the District of Columbia) that have hate crime statutes that include crimes committed against people because of their disability. Most of these statutes create separate crimes, but some states include the provision in sentencing statutes, and two states (California and Illinois) have provisions in both criminal and sentencing statutes. (States with hate crime sentencing statutes may have Constitutional problems after the U. S. Supreme Court’s decision in Apprendi v. New Jersey, which requires that juries, instead of judges, find a fact that increases the penalty for a crime. )

Eleven states use the term disability or handicap in their hate crime statute without defining the term (California, Delaware, Hawaii, Iowa, Louisiana, Nebraska, New Jersey, Oklahoma, Rhode Island, Texas, and Wisconsin). The District of Columbia specifies physical disability. Four states specify physical or mental disability (Alaska, Illinois, Maine, and Nevada) and a number of other states use a definition that includes both of them:

1. New York defines disability as a physical or mental impairment that substantially limits a major life activity;

2. three states (Massachusetts, Missouri, and Vermont) define disability or handicap as (1) a physical or mental impairment that substantially limits one or more of a person’s major life activities, (2) a record of having such impairment, or (3) being regarded as having such impairment;

3. Minnesota uses the same definition as the three states above but also includes sensory impairments; and

4. in Florida mental or physical disability means that (1) the victim suffers from physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness and (2) has one or more physical or mental limitations that restrict his ability to perform normal activities of daily living.

Nine jurisdictions specify that a hate crime can be based on the victim’s disability or the defendant’s belief that the victim was disabled (California, D. C. , Hawaii, Illinois, Louisiana, Minnesota, Nevada, Rhode Island, and Vermont) and Washington specifies that mistake about the victim’s handicap is not a defense. Two states (New York and Wisconsin) base the crime on the defendant’s belief or perception of the victim’s disability. In Florida, the defendant must perceive, know, or have reasonable grounds to perceive or know of the victim’s disability. In Nevada, the crime must be committed because the actual or perceived physical or mental disability of the victim was different from his own. In Texas, the defendant must commit the crime because of his bias or prejudice against a group identified by disability.

All of the statutes address conduct aimed at an individual because of his disability. Minnesota addresses crimes motivated by the victim’s or another’s disability. Four states (Illinois, Nevada, New Jersey, and Washington) also address conduct aimed at a group because of their disability. Iowa and Nebraska include provisions for crimes against people who are associated with a disabled person. California’s sentencing law addresses crimes aimed at a public agency or private institution because it is identified with a person or group with a disability. And Illinois’ sentencing law also allows the court to consider, as a factor at sentencing, that the crime was committed against a disabled person; someone associated with, married to, or a friend of the disabled person; or a relative by blood or marriage of any of these people.

Following are summaries of these hate crime statutes as they relate to people with disabilities.

STATE STATUTES

Alaska

Alaska includes a list of aggravating and mitigating factors that the court considers when imposing a sentence. The court can increase the presumptive term up to the maximum term of imprisonment for the crime for aggravating factors. One of the aggravating factors includes that the defendant knowingly directed the conduct constituting the offense at a victim because of the victim’s physical or mental disability (Alaska Stat. § 12. 55. 155(c)(22)). This applies to A, B, and C felonies; 1^st degree sexual assault; and 1^st degree sexual abuse of a minor, but not to murder and certain other crimes.

California

California law prohibits a person from using force or threat of force to willfully injure, intimidate, interfere with, oppress, or threaten any other person in the free exercise or enjoyment of any right or privilege under state or federal laws or constitutions because of the person’s disability (actual or perceived). It also prohibits knowingly defacing, damaging, or destroying property to intimidate or interfere with those rights because of the person’s disability (actual or perceived). This is punishable by up to one year in jail, a fine of up to $ 5,000, or both and at least 400 hours of community service within 350 days. The law specifies that a conviction cannot be based on speech alone unless the speech threatens violence against a person or group and the defendant had the apparent ability to carry it out (Cal. Penal § 422. 6).

The law also provides a penalty of up to one year incarceration, a fine of up to $ 10,000, or both for other crimes committed against a person or property to intimidate or interfere with his rights and because of his disability (actual or perceived) when the defendant (1) has the present ability to commit a violent injury or cause actual physical injury, (2) causes property damage over $ 500, or (3) has a previous conviction under the statute above or conspiracy to commit that crime (Cal. Penal § 422. 7).

California sentencing law also provides for sentence enhancements, which give the court discretion to impose an extra term in addition to the ordinary term for the underlying crime (Cal. Penal § 1170. 11). With certain exceptions, the court can impose an additional term of:

1. one, two, or three years in prison if (a) a person commits or attempts to commit a felony because of the victim’s actual or perceived disability or (b) the crime is against the property of a public agency or private institution because it is identified with a person or group with a disability;

2. two, three, or four years in prison if the person acted in concert with another either personally or by aiding and abetting in addition to committing or attempting to commit the felony; and

3. one year in prison for each prior felony conviction where the crime was committed because of the victim’s disability (actual or perceived) or certain other characteristics.

The law allows the court to strike any of these additional terms if it finds mitigating circumstances. The law specifies that bias must be a cause of the offense, whether or not other causes exist, and bias must be a substantial factor in bringing about the result if multiple motives exist (Cal. Penal § 422. 75).

If the court does not impose sentencing enhancements, it can consider the fact that the defendant committed or attempted to commit a felony because of the victim’s actual or perceived disability as an aggravating circumstance in choosing which sentence to impose for the crime (Cal. Penal § 1170(b), § 1170. 75).

If the court grants probation for one of these crimes, it can order the defendant to (1) complete a class on racial or ethnic sensitivity, training on civil rights, or a one-year counseling program to reduce violence and anti-social behavior; (2) make payments to community-based programs or local agencies that serve victims of hate violence; (3) reimburse the victim for reasonable costs of counseling and reasonable expenses resulting from the defendant’s acts (Cal. Penal § 422. 95).

Delaware

A person commits a hate crime if he commits or attempts to commit a crime and intentionally selects the victim because of the victim’s disability. The penalty depends on the underlying offense.

(Del. Code Title 11 § 1304)

District of Columbia

A person commits a bias-related crime if he commits a crime that shows his prejudice based on the victim’s actual or perceived physical handicap victim. This is punishable by up to 1. 5 times the maximum fine and prison sentence for the crime (D. C. Code § 22-3701 et seq. ).

Florida

Florida increases the penalty for a felony or misdemeanor by one offense level when the crime shows prejudice based on the victim’s mental or physical disability. Mental or physical disability means that (1) the victim suffers from physical or mental incapacitation due to a developmental disability, organic brain damage, or mental illness and (2) has one or more physical or mental limitations that restrict his ability to perform normal activities of daily living. The law specifies that the record must show that the defendant perceived, knew, or had reasonable grounds to know or perceive the victim’s status (Fla. Stat. § 775. 085).

Hawaii

Under Hawaii law, a person convicted of a felony can receive an extended prison term if he is a hate crime offender and the extended term is necessary to protect the public. The court can impose this sentence if the defendant (1) committed a crime classified as an offense against the person, property rights, or public order and (2) intentionally selected the victim or property because of hostility toward someone’s actual or perceived disability (Haw. Rev. Stat. § 706-662(6)).

The extended penalties are: (1) life without parole for 2^nd degree murder, (2) an indeterminate life sentence for a class A felony, (3) an indeterminate 20 year term for a class B felony, and (4) an indeterminate 10 year sentence for a class C felony (Haw. Rev. Stat. § 706-661).

Illinois

A person commits a hate crime when, because of another person’s or group’s actual or perceived physical or mental disability, he commits assault or aggravated assault; battery; misdemeanor theft; criminal trespass to residence, vehicle, or real property; misdemeanor criminal damage to property; mob action; disorderly conduct; or harassment by telephone. This is a class 4 felony (one to three years in prison) but subsequent offenses are class 2 felonies (three to seven years in prison). If the crime occurs in specific locations, it is a class 3 felony (two to five years in prison). The court must order restitution or a fine of up to $ 1,000. It must order at least 200 hours of public or community service, if available in that county, as part of probation or conditional discharge (720 ILCS 5/12-7-1).

In addition, one of the aggravating factors that a court can consider for imposing a prison term or to impose a more severe sentence is when, because of another individual’s actual or perceived physical or mental disability, the defendant committed the offense against (1) that individual or his property; (2) the person or property of someone who is associated with, married to, or a friend of the individual; or (3) the person or property of a relative (by blood or marriage) of any one of these people (730 ILCS 5/5-5-3. 2(a)(10)).

Iowa

A person commits a hate crime when he commits certain crimes against a person or his property because of the person’s disability or his association with a person with a disability. The crimes are:

1. assault in violation of individual rights, which includes assault and is punishable as (a) a serious misdemeanor (up to one year in prison), (b) an aggravated misdemeanor (up to two years in prison) if the assault causes bodily injury or mental illness, or (c) a class D felony (up to five years in prison) if the person commits the assault with intent to inflict serious injury or he uses or displays a dangerous weapon;

2. violation of individual rights, which includes 2^nd and 3^rd degree arson, reckless use of fire or explosives, possession of explosive or incendiary materials or devices, false reports, and threats (punishable as an offense one degree higher than the underlying offense);

3. criminal mischief in violation of individual rights, which includes 3^rd, 4^th, and 5^th degree criminal mischief (punishable as an offense one degree higher than the underlying offense); and

4. trespass in violation of individual rights, which includes trespass as a serious misdemeanor or an aggravated misdemeanor if the injury or damage is more than $ 200 (Iowa Code § 729A. 2 and various other referenced statutes).

Louisiana

A person commits a hate crime if he commits certain crimes against a person or property and he selects the victim because of the actual or perceived disability of the person or property owner or occupant. The statute specifies a long list of crimes including (1) 1^st and 2^nd degree murder, (2) manslaughter, (3) battery, (4) terrorizing, (5) sexual assault crime, (6) kidnapping, (7) burglary, and (8) trespass (La. Rev. Stat. § 14: 107. 2).

Maine

Maine punishes a person who, by force or threat of force, intentionally injures, intimidates, or interferes with (or attempts to) any person in the free exercise or enjoyment of a right or privilege under state or federal laws or constitutions (Me. Rev. Stat. 17 § 2924). This is a class D crime punishable by up to one year in prison, a fine of up to $ 2,000, or both. For purposes of this statute, a person has the right to engage in lawful activities without being subject to physical force or violence, damage or destruction of property, or trespass on property (or the threat of any one of these things) motivated by reason of physical or mental disability (Me. Rev. Stat. 337-B § 4684-A).

Massachusetts

Massachusetts punishes an assault or battery of a person or damage to property with intent to intimidate a person because of his disability. The court can also order restitution of up to three times the value of the property damage. Disability has the same definition as handicap: (1) a physical or mental impairment which substantially limits one or more major life activities of a person, (2) a record of having such impairment, or (3) being regarded as having such impairment. But it does not include any condition primarily resulting from the use of alcohol or a controlled substance.

This is punishable by up two and one-half years in prison, a fine of up $ 5,000, or both. If the battery results in bodily injury, it is punishable by up to five years in prison, a fine of up to $ 10,000, or both. If the defendant was armed with a firearm, rifle, shotgun, machine gun, or assault weapon, the sentence can be up to 10 years in prison. A defendant must also complete a diversity awareness program before release from incarceration or completion of probation (Mass. Gen. L. ch 265, § 39).

Minnesota

A person commits assault motivated by bias if he assaults someone because of the victim’s or another’s actual or perceived disability. This is punishable by up to one year in prison, a fine of up to $ 3,000, or both. If the defendant has a previous conviction within five years, the crime is a felony punishable by up to a year and a day in prison, a fine of up to $ 3,000, or both (Minn. Stat. § 609. 2231(4)). Disability is defined as any condition or characteristic that renders a person disabled and a disabled person is any person who (1) has a physical, sensory, or mental impairment that materially limits one or more major life activities; (2) has a record of such impairment; or (3) is regarded as having such an impairment.

If a person commits harassment or stalking because of the victim’s or another’s actual or perceived disability, it is a felony with up to five years in prison, a fine of up to $ 10,000, or both (Minn. Stat. § 609. 749(3)).

A person commits 2^nd degree criminal damage to property if he intentionally causes damage to property that reduces its value by between $ 250 and $ 500 (as measured by the cost of repair and replacement) because of the owner’s or other’s actual or perceived disability. This is a felony punishable by up to one year and a day in prison, a fine of up to $ 3,000, or both. If the damage reduces the value by no more than $ 250, it is punishable by up to one year in prison, a fine of up to $ 3,000, or both (Minn. Stat. § 609. 595).

Missouri

In Missouri, it is a hate crime to commit certain crimes motivated because of the victim’s disability. The penalty for the hate crime is a class D felony (punishable by up to five years in prison) when the underlying crime is certain types of 3^rd degree assault, harassment, 2^nd degree tampering with property, 2^nd degree property damage, 1^st degree trespass, and rioting. It is a class C felony (punishable by up to seven years in prison) when the underlying crime is certain types of 1^st degree property damage and unlawful use of weapons.

The statute defines disability as (1) a physical or mental impairment that substantially limits one or more of a person’s life activities, (2) being regarded as having such impairment, or (3) a record of having such impairment (Mo. Rev. Stat. § 557. 035)

Nebraska

In Nebraska, if a person commits certain crimes against someone or his property because of his disability or because he is associated with a person with a disability, it is punishable one penalty class higher than the penalty for the underlying offense (unless it is already a class IB felony or higher). The crimes include manslaughter, assault, terroristic threats, stalking, kidnapping, false imprisonment, sexual assault, arson, criminal mischief, and criminal trespass (Neb. Rev. Stat. § 28-111).

Nevada

In Nevada, if a person commits certain crimes because the actual or perceived physical or mental disability of the victim was different from his own, he can be punished by an additional prison term of up to 25% of the term for the crime. This statute increases the sentence and is not a separate crime (Nev. Rev. Stat. § 193. 1675). The specific crimes include mayhem, kidnapping, sexual assault, robbery, battery with intent to commit a crime, false imprisonment, involuntary servitude, certain assaults, child and elder abuse and neglect, and certain stalking crimes.

If a person willfully commits certain crimes because of the actual or perceived physical or mental disability of another person or group, it is a gross misdemeanor punishable by up to one year in prison, a fine of up to $ 2,000, or both. The crimes include assault, battery, harassment,

elder abuse, stalking, disturbing the peace, unlawful assembly and certain related crimes, forcible entry and detainer, certain property damage crimes, threatening, and unlawful trespass (Nev. Rev. Stat. § 207. 185).

New Jersey

A person commits the crime of bias intimidation if he commits or attempts, conspires, or threatens to immediately commit certain crimes and:

1. he intended to intimidate an individual or group because of handicap;

2. he knew the offense would cause the person or group to be intimidated because of their handicap; or

3. the circumstances caused the crime victim to be intimidated and the victim reasonably believed that either (a) the offense was committed to intimidate him or any person or entity in whose welfare the victim is interested because of handicap or (b) the victim or his property was selected as the target because of his handicap.

Proof that the defendant or another acting in concert with him selected the target of the offense for this purpose creates an inference that the defendant did act with that purpose.

The crimes include homicide, assault, threats, kidnapping, sex offenses, robbery, arson, criminal mischief, burglary, harassment, and certain weapons crimes.

The crime of bias intimidation is punishable as (1) a 4^th degree crime if the underlying offense is a disorderly persons offense or a petty disorderly persons offense; (2) one degree higher than the most serious underlying crime; or (3) a 1^st degree crime if the underlying crime is a 1^st degree crime, and the defendant can be sentenced to between 15 and 30 years with a presumptive term of 20 years.

The statute specifies that a conviction of bias intimidation does not merge with a conviction of the underlying offense and the court must impose separate sentences (N. J. Rev. Stat. § 2C: 16-1).

New York

It is 2^nd degree aggravated harassment if a person strikes, shoves, kicks, or subjects another person to physical contact or attempts or threatens to do so because of his belief or perception (whether correct or not) of the person’s disability. This is a Class A misdemeanor (NY Penal Law § 240. 30).

A repeat offender is subject to higher penalties under the 1^st degree aggravated harassment statute for previous convictions within the past 10 years. This crime is a Class E felony (NY Penal Law § 240. 31).

A person commits a hate crime when he commits certain offenses and intentionally selects the victim or commits the offense in whole or part because of a belief or perception (whether correct or not) of the victim’s disability. Disability is a physical or mental impairment that substantially limits a major life activity (NY Penal Law § 485. 00 et seq. ).

The offenses include assault, menacing, reckless endangerment, manslaughter, 2^nd degree murder, stalking, sexual abuse crimes, kidnapping, coercion, criminal trespass crimes, burglary, criminal mischief, arson, larceny, robbery, harassment and aggravated harassment, and attempt or conspiracy to commit any of these crimes.

When the underlying offense is a misdemeanor or class C, D, or E felony, the hate crime is punishable by one category higher than the offense level for the underlying offense. If the offense is a class B or A-1 felony, the law prescribes certain terms depending on how the offender is sentenced.

Oklahoma

Oklahoma punishes someone who maliciously and with intent to intimidate or harass a person because of his disability (1) assaults or batters the person; (2) damages, destroys, vandalizes, or defaces his property; or (3) threatens by word or act to do one of these things, if there is reasonable cause to believe that the act will occur.

The law also punishes someone who (1) acts maliciously and intends to incite or produce imminent violence and is likely to produce it; (2) directs the conduct at someone because of his disability; and (3) (a) makes or transmits a telephone, computer, or electronic message (or causes or allows it to be made or transmitted) or (b) broadcasts, publishes, or distributes any message or material (or causes or allows it to happen).

A first offense is a misdemeanor punishable by up to one year in prison, a fine of up to $ 1,000, or both. Subsequent offenses are felonies punishable by up 10 years in prison, a fine of up to $ 10,000, or both (Okla. Stat. § 21-850).

Rhode Island

A person is subject to sentencing for a hate crime if he committed a crime and he intentionally selected the victim or property because of the person’s hatred or animus toward the actual or perceived disability of the victim or property owner or occupant. If the underlying crime is a misdemeanor offense, it carries a 30 day mandatory prison sentence and up to one year in prison with no suspension of sentence or probation. For underlying crimes that are felonies, it carries an additional, consecutive term of one to five years in prison but not more than double the original penalty for the crime (R. I. Gen. Laws § 12-19-38).

Texas

Texas law increases the penalty for arson, criminal mischief, graffiti, and crimes that are offenses against the person if the defendant intentionally selected the victim or property because of the defendant’s bias or prejudice against a group identified by disability. As part of a sentence, the judge can require a defendant to attend an educational program to further tolerance and acceptance of others (Tex. Crim. Proc. Code § 42. 014).

For a class A misdemeanor, the law increases the minimum term to 180 days. For crimes other than 1^st degree felonies, it increases the penalty by one class. But the increase does not apply when the underlying crime is injury to a disabled person (Tex. Penal Code § 12. 47).

Vermont

In Vermont, if a person commits, causes to be committed, or attempts to commit a crime and is maliciously motivated by the victim’s actual or perceived handicap, the crime is punishable by (1) up to two years, a fine of up to $ 2,000, or both if the underlying crime is punishable by one year or less; (2) up to five years, a fine of up to $ 10,000, or both if the underlying crime is punishable by between one and five years; or (3) the same penalty as the underlying crime if that crime is punishable by at least five years, but the court considers the defendant’s motivation as a factor in sentencing (13 Vt. Stat. § 1455).

Handicap is defined as a person (1) with physical or mental impairment that substantially limits one or more major life activities, (2) with a history or record of such impairment, or (3) regarded as having such impairment.

Washington

A person commits malicious harassment if he maliciously and intentionally, because of the victim’s mental, physical, or sensory handicap, (1) causes physical injury to the victim or another person, (2) causes physical damage or destruction to the victim’s or another’s property, or (3) threatens a person or group and places the person or members of the group in reasonable fear of harm to person or property (fear that a reasonable person who has the same handicap would have under the circumstances). Mistake about the victim’s handicap is not a defense. This is a Class C felony.

The statute specifies that under the third part of the crime, words alone are not sufficient unless the context or circumstances show that they are a threat and threatening words are insufficient if it is apparent to the victim that the person cannot carry out the threat (Wash. Rev. Code § 9A. 36. 080)

Wisconsin

If a person commits a crime and intentionally selects the victim or property in whole or part because of the belief or perception (whether or not correct) of the disability of the person or property owner or occupant, it is punishable (1) by up to one year in prison and a fine of up to $ 10,000, if the underlying crime is a misdemeanor; (2) as a felony with up to two years in prison and a fine of up to $ 10,000, if the underlying crime is a class A misdemeanor; and (3) by increasing the maximum prison term by up to five years and the maximum fine by up to $ 5,000, if the underlying crime is a felony. These penalties take effect February 1, 2003 (Wis. Stat. § 939. 645).

CR: eh