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 enhancements: R.A.V. v. City of St. Paul (striking viewpoint‑based restrictions on speech), Dawson v. Delaware (rejecting enhancement based on unconnected group membership), and Wisconsin v. Mitchell (upholding enhancements when biased motive affects selection of the victim). Paul told the committee that the version of H.118 before them removes an element the Mitchell Court relied on — the connection between bias and the selection of a victim — and would instead allow enhancement where the bias is tied only to the defendant’s conduct or expression. From his perspective, that mirrors what R.A.V. forbids and invites a legal challenge.

Paul illustrated the practical effect: if a simple property damage offense ordinarily carries a six‑month maximum, a hate‑motivated version of the same act can become a multi‑year felony under Vermont’s current enhancement scheme. He recommended narrowing enhancements at the low end of the scale so that an enhancement is never substantially greater than the underlying offense. Specifically, Paul suggested limits such as capping any enhancement at six months where the underlying offense carries less than one year, capping an enhancement at three years where the underlying maximum is between one and five years, and in any event ensuring an enhancement does not exceed half of the underlying sentence.

Paul also cited a pending question about Vermont law: State v. Schenck raised constitutional concerns about the present Vermont statute (13 V.S.A. § 1455) but the Vermont Supreme Court did not resolve the constitutional question because it found no underlying offense in that appeal. "That in and of itself is an up in the air question," Paul told the committee.

Countering that view, Rod Smola said Mitchell permits states to treat bias‑motivated offenses as more serious because such crimes "are more likely to lead to civil disturbance" and "undercut the cohesiveness of the community." Smola emphasized a passage in Mitchell he said is dispositive: the U.S. Supreme Court allows courts to consider biased motive in sentencing, and the evidentiary use of a defendant’s speech to prove motive or sentencing severity "does not violate the First Amendment," he said.

Smola advised the committee that the bill’s changes — including language that would treat bias as one of multiple motivating purposes rather than requiring it to be the sole motive and language that would allow non‑specific victims ("a person or group of persons") to qualify — are constitutionally permissible in his view. He told members that many states use Mitchell‑style language focusing on whether the defendant intentionally selected a victim because of a protected characteristic and that the federal Constitution does not require the exact phrasing Paul suggested.

Committee members pressed both witnesses on hypotheticals involving municipal property and public spaces (the Brattleboro gazebo was discussed as an example), on how charging choices (for example, unlawful mischief vs. a domestic‑terrorism style charge) affect who counts as the victim, and on whether existing Vermont statutory text (section 1455) already faces constitutional doubt. Both witnesses agreed prosecutors retain discretion to bring or decline enhancement charges based on the strength of proof of biased motivation.

No formal vote or action was taken during the hearing. Chair remarks indicated the committee will hear additional testimony from other scholars and legislative counsel before deciding next steps.

Sources: statements and examples provided to the committee by Marshall Paul, Deputy Defender General and Chief Juvenile Defender (testimony), and Rod Smola, president of Vermont Law Graduate School (testimony).