A hate crime bill is not called for in the CNMI, according to Chief Public Defender Douglas W. Hartig, but if one were to be enacted, he suggests it should be clear and closely crafted to address perceived problems in the CNMI. Hartig recommends looking at California for guidance and clarity.
Hartig stated this opinion in a March 30, 2021, letter to Rep. Donald Manglona (Ind-Rota), who is the author of House Bill 22-18, or the Hate Crimes Act of 2021. Ten other House lawmakers are co-authors of the legislation. The bill is currently with the House Committee on Judiciary and Governmental Operations chaired by Rep. Celina R. Babauta (D-Saipan).
H.B. 22-18 will amend Division 4 of Title 6 of the Commonwealth Code relating to disposition of offenders and sentencing to provide criteria for imposition of enhanced sentencing of defendants for crimes motivated by hate. Manglona stated in the bill that criminal acts borne of hate have become more pervasive and widespread throughout the CNMI and that the CNMI joins a minority of states and territories (Arkansas, Wyoming, South Carolina, American Samoa, Guam, and the U.S. Virgin Islands) that have yet to enact meaningful legislation to regulate hate-based crimes. Manglona said it’s time for the Commonwealth to join the majority of states that have passed reform legislation regulating hate-based criminal acts.
In his opposition to the bill, Hartig described the bill as “unclear” and that there is a better way to address the concerns of this legislation, but that doubling the sentence is not an answer.
One possibility, Hartig said is to codify racial or ethnicity hatred as a sentencing factor a judge should consider at sentencing.
Hartig said the National Institute of Justice has found that increased punishments do not deter crime, and that many studies have come to the same conclusion. “Tough on crime bills are often popular but rarely effective,” he said.
Hartig noted that states are repealing things like mandatory minimum sentences, long sentences and the death penalty as they learn these are ineffective in addressing criminal behavior. “They can also be unfairly applied, in this situation perhaps to mentally unstable people who need treatment and counseling rather than an extended prison sentence,” he said.
Hartig said H.B. 22-18 in many instances doubles the potential punishment of the underlying offense. “Doubling the potential sentence is extremely harsh,” he said.
Hartig said admittedly not likely, there may even be an argument that such a disparity between the underlying sentence and this enhanced sentence is an unconstitutional Eighth Amendment violation.
He said this bill goes beyond enhancement of other states. He pointed out that two larger states with hate crime legislation, California and Texas, do not categorically double the sentencing rate for all hate crimes.
“Unsurprisingly, Texas, by way of example, is harsher than other states but still not as harsh as the proposed act,” he said.
Hartig said California only adds up to 1 to 3 years maximum for felonies (or 4 if a conspiracy is also proved).
In contrast, he said, H.B 22-18 applies to misdemeanors and can add a decade to a felony.
The chief public defender pointed out that the CNMI criminal statutes already have severe sentence ranges for the underlying offenses.
He said a hate crime bill should clearly state that the trier of fact (jury or judge) must find beyond a reasonable doubt that the acts alleged are in fact hate crimes. “This bill does not say,” he said.
In California a jury must decide the issue as a separate charge. In this bill, Hartig said, it’s not clearly stated. “It should be that the finder of facts has to find the elements of the hate crime allegation beyond a reasonable doubt, and only then can the judge consider the additional sentencing range afforded by this statute,” Hartig said.
He said an accused person should be able to raise defenses to his enhancement which an accused person is entitled to do for all other elements of a charged crime. “This bill is unclear,” he noted.
Hartig said the “findings” at the beginning of this bill that says “criminal acts borne of hate have become more pervasive and widespread throughout the CNMI.” He said there is no data given to show this.
Based on extensive experience in the criminal justice in the CNMI, this does not seem correct, Hartig said. “Without statistics to back up this assertion, we should not assume this statement is true,” he said, adding that without needed evidence, there is no showing of a need or justification for this bill.
An issue not addressed in this proposed legislation is the mental health of anyone committing a hate crime. Hartig said the American Psychological Association found that offenders of alleged hate crimes may feel that their livelihood or way of life is threatened by demographic changes. He said offenders may not be motivated by hate, but rather by fear, ignorance, or anger.
“A potential offender does not say to themselves before committing an assault that I will slap this person if I only go to jail for a year, but will not if I may go to jail for two years,” he said.
In other words, Hartig said, an increase in the severity of the punishment is rarely a deterrent.