Experts to Vermont Judiciary Committee Split on Constitutionality of H.118 Hate‑crime Enhancement

The House Judiciary Committee heard competing legal views on H.118 on January 31, a bill that would broaden Vermont’s hate‑crime sentencing enhancement by expanding when bias can increase a defendant’s penalty. Marshall Paul, Deputy Defender General and Chief Juvenile Defender, told the committee the draft language risks being unconstitutional under U.S. Supreme Court precedent, while Rod Smola, a constitutional scholar and president of Vermont Law Graduate School testifying in a private capacity, said the expansion fits within the Court’s Wisconsin v. Mitchell framework and is defensible.

A hate‑crime sentencing enhancement is not a separate crime but an increase in the penalty for an underlying offense when the defendant’s bias is a motivating factor. "The First Amendment protects Americans' right to be racist, to be sexist, to be, to have all kinds of really objectionable, horrible opinions, and to express those opinions," Paul said, explaining why courts limit enhancements to circumstances where bias is tied to the criminal conduct rather than to protected speech alone.

Paul walked the committee through key U.S. Supreme Court precedents the defender general’s office regards as the boundaries for constitutional…