PHOENIX — A state lawmaker wants to expand laws that allow enhanced penalties for those who attack someone based on things like race and religion to also include political beliefs.
Sen. John Kavanagh, R-Fountain Hills, said he got the idea while watching a video on TV “of these two guys beating the crap out of some Trump supporter.”
“I don’t know the background,” Kavanagh acknowledged, with the video from some other state. But he said it was clear the reason for the attack was the victim was supporting Trump.
“That’s worse than beating somebody up for some other reason,” he said. “And we should send a message to judges that we think this should be punished more seriously.”
The idea drew derision from Dan Pochoda, attorney for the American Civil Liberties Union of Arizona.
He said it’s one thing to imposed an enhanced penalty on those who attack someone because of something that is “immutable” to them, like their race, gender or sexual orientation. But Pochoda called it “very dangerous” to expand that to transient issues like who someone is supporting for public office.
Unlike some states, Arizona does not have specific laws that create a special category of “hate crimes.”
What it does have, though, is language in statutes that requires judges, when deciding the appropriate sentence for any offense, to consider both mitigating and aggravating factors.
A mitigating factor that might suggest a lenient sentence could be the person’s youth or even their intoxication. Aggravating factors weighing in favor of more time behind bars include things like the use of a gun.
And the law also says judges may consider whether the crime was based on race, color, religion, national origin, gender, sexual orientation or disability. To that list, SB 1022 proposes to add “political affiliation, beliefs or opinions.”
“I believe in the ‘just desserts’ school of sentencing,” said Kavanagh.
“Punishment is deserved for the harm that’s done,” he explained. “But punishment must be proportional to the badness of the act.”
He called SB 1022 “a message from the Legislature to give the judges some legislative basis, if they choose to, to stick with the existing sentencing structure but go to the harsher end.”
For example, someone who causes serious physical injury to another is guilty of the crime of aggravated assault. In general, that is classified as a Class 3 felony.
Under Arizona law, the presumptive prison term is 3.5 years.
But with mitigating factors it can be as little as 2 years; a sentencing with aggravating factors can be as much as 8.75 years.
Pochoda said what Kavanagh wants runs contrary to the reasoning behind hate crimes sentencing laws.
“That’s because people are members of identifiable groups,” he said. Pochoda said while some are impossible to change, like race or gender, that also rightly includes religion.
“People don’t change religions that quickly — certainly not as quickly as changing your opinion or even party affiliation,” he said. More to the point, Pochoda said such offenses are often not aimed strictly at the person being assaulted.
“The concept is that a crime against one person because of that person’s race will put fear, understandably, into all members of that race,” he said.
“It really does require something much more than the transitory nature of supporting one candidate in a particular presidential race,” Pochoda said, saying there really is “an identifiable group that transcends any one four-year election cycle.”