COVINGTON, KY (InvestigateTV) - A public outcry led prosecutor Rob Sanders to do something he’d never done before: Exploit his state’s hate-crime law.
But his idea wasn’t to just prove that a white supremacist had in fact attacked because of hate, it was to prove that Kentucky’s law, even with a conviction, would actually do nothing.
Kentucky is one of 46 states with some type of hate crime protection law on the books, but Sanders would tell anyone it doesn’t matter: “It’s really not worth the paper it’s printed on.”
Victims in states with no hate crime laws face an even more bleak prospect: There is nothing on the books to enhance penalties or even to simply recognize that their trauma was motivated by hate. In those states, prosecutors have looked for creative ways to maximize charges or relied on Department of Justice attorneys to step in and use the federal hate crimes law.
Kentucky’s hate crime law only allows a judge to add a note into convicts' case file stating that what they did was motivated by hate. The law doesn’t enhance the punishment or even give judges and parole boards any additional powers when considering a convict’s prison release.
It makes the state’s law “toothless,” Sanders said.
“I think it creates unrealistic expectations for prosecutors and law enforcement, and really, unrealistic expectations for the public when they’re clamoring for a hate crime, and they really don’t know what that means. And they expect it to mean something but in Kentucky it doesn’t,” Sanders said.
He tested his theory in the case against Devlin Burke.
In 2010, Burke and four other people were pulling out of a gas station and almost hit a group of women who were leaving a gay bar. One of the women slapped the back of the car with her hand, and then men got out of the car, Sanders said. The men then assaulted the women, yelling anti-gay slurs. When bystanders tried to stop the fight, they too were assaulted.
“At the time I was thinking this would be a perfect case to use as an example of just how toothless Kentucky’s hate-crime [law] is. That we would designate it as a hate crime, we would go forward and let the public see that it really doesn’t change much of anything,” Sanders said.
The judge agreed the incident outside the bar met the state’s legal definition of a hate crime; however, as Sanders predicted when he filed the papers, no additional time was tacked onto Burke’s sentence.
Then, in 2016, the state’s court of appeals tossed out some of the hate crimes designations because they determined Burke’s attacks on the bystanders weren’t motivated by hate. That ruling further showed the law didn’t matter: Burke served no less time even when the court peeled back part of the hate-crimes designation.
“I’m of the opinion that if we are going to have a hate crime law that there has to be some substance to it. It should mean something,” Sanders said.
In the last year, there have been some high-profile hate crimes in Kentucky, including the killings of two black people in a Kroger grocery store on Oct. 24.
The suspect in that store killing, Gregory Bush, is accused of gunning down a man inside the store and a woman in the parking lot. Witnesses told WAVE-TV they heard him say, "Whites don’t kill whites.” Minutes before the shooting, Bush attempted to enter a predominately black church. He now faces state murder charges.
The prosecutor in that case, Tom Wine, said that the way Kentucky’s hate crimes law works “really does not help us at all.”
Sanders said he believes that Kroger case and others may help push an overhaul to the state law, which could help future cases.
“The media attention probably isn’t going to leave those cases any time soon. And I think that may be enough motivation to get the legislature to actually act upon the need to strengthen our hate-crime law in Kentucky.”
Two Kentucky representatives proposed a bill that would include criminal homicides as hate crimes in the state. That bill would still only allow judges to put the hate crime designation into the court record for consideration during probation and parole decisions.
In November, U.S. attorneys charged Bush using the federal law, which allows for a life sentence when hate crimes result in death.
This year, some states will consider adding new laws or strengthening what’s already on the books. Mississippi is among those states with bills filed.
“When people don’t feel like they’re protected by the law, then they are further marginalized,” Mississippi ACLU Executive Director Jennifer Riley-Collins said. “Tangibly, I think we could see marginalized communities coming out of the shadows and being able to live their full lives.”
Arkansas, Georgia, Indiana, South Carolina and Wyoming have no hate crime laws. Each of those states have tried to change that, but all efforts have stalled. Many of those attempts have come in the aftermath of high-profile crimes.
In South Carolina, multiple lawmakers tried to get a hate-crime law for the state, particularly after the 2015 murders of nine parishioners at a Charleston church at the hands of Dylann Roof. Those attempts all failed.
Federal prosecutors ultimately charged Roof for his crimes, and he became the first person convicted of a federal hate crime to be sentenced to death.
The state remains without a hate crime law, meaning that without federal prosecutors involved, bias-motivated crimes cannot be specifically prosecuted as hate crimes.
Wyoming is the site of one of the nation’s most notorious hate crimes: The 1998 murder of Matthew Shepard, a young gay man who was brutally attacked, tortured and left for dead tied to a fence post outside Laramie. His home state remains without its own law, even as the federal hate crime act is named after Shepard and James Byrd Jr., a black man murdered in Texas by white supremacists the same year.
In 2011, Arkansas was the site of the first sentencing under the Shepard-Byrd Hate Crimes Prevention Act. Frankie Maybee and Sean Popejoy attacked five Hispanic men on June 20, 2010. Investigators said Maybee and Popejoy forced the men off the road until they lost control and their car burst into flames – all the while, yelling racial slurs. With no hate crime law on the books, the only way for the case to get a hate crime designation was with federal Department of Justice prosecution. A judge sentenced Maybee to 11 years in prison and Popejoy to four years.
Georgia once had a hate crime law, but in 2004, the state’s supreme court declared it “unconstitutionally vague.” Since then, prosecutors have used other laws to enhance some cases. For example, in 2015, the Southern Poverty Law Center exposed a case where a group of people in trucks with Confederate flags antagonized a children’s birthday party in Douglasville. With no specific hate-crime law to use, prosecutors used terroristic-threat and street-gang laws.
Former FBI agent and Matthew Shepard Foundation Programs Director Cynthia Deitle said this type of problem is common right now: When laws aren’t strong enough on the state level, authorities have to rely on the Department of Justice – which may or may not take their cases.
“In the five states without hate crime laws, hopefully those state law enforcement officials have good relationships with the FBI and the Department of Justice and they can pursue a hate crime federally, if the evidence bares that out. So there’s still a way for the victim to feel vindicated because the hate motive was addressed under federal law, even if it couldn’t be under state law,” Deitle said.