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Legislative counsel tells Judiciary committee courts may hear uncharged hate‑crime evidence at sentencing
Summary
Ben Novogradski of the Legislative Council told the Judiciary Committee that Vermont follows a racial‑animus model for hate‑crime laws, and that courts can consider uncharged evidence at sentencing if defendants receive advance notice and the evidence is proved by a preponderance of the evidence.
Ben Novogradski, Legislative Council, told the Judiciary Committee that Vermont uses a racial‑animus approach to hate‑motivated crimes and that courts may consider uncharged evidence of bias at sentencing.
Novogradski said the three general statutory approaches states use are the racial‑animus model, a discriminatory‑selection model, and a “because of” (or “by reason of”) characteristics model. He described Vermont’s law as requiring proof that an offense was motivated by bias, bigotry or hatred.
Novogradski also corrected earlier testimony about how hate‑crime indicators can be used in court. He said courts can receive uncharged evidence at sentencing provided the defendant gets advance notice and the facts are proved by a preponderance of the evidence rather than beyond a reasonable doubt.
The counsel noted that a prior Vermont case, State v. Schenck, addressed the breadth of the disorderly‑conduct statute rather than directly striking down a hate‑crime enhancement. “What the constitutional issue in that case was was the breadth of the underlying disorderly conduct statute,” Novogradski said, adding that the constitutional question turned on whether the statute reached protected speech rather than solely conduct.
Committee members asked whether statutory language requiring courts to “consider” bias when sentencing for felonies over five years effectively creates an enhancement. Novogradski confirmed that such language means judges must take bias into account when imposing an upper‑range sentence.
The committee also discussed compiling the cases and materials referenced in the briefing. Novogradski said the cases would be posted to the committee’s website for members and the public to review ahead of further work on related bills.
No formal committee action on hate‑crime legislation was recorded in this session; the discussion was a policy and technical briefing for members.
Looking ahead, Novogradski said materials and relevant cases discussed in the briefing will be made available online before the committee takes further steps.
