Sen. John Kavanagh wants judges to consider political affiliation, beliefs or opinions in the same way they consider crimes motivated by factors like race and gender – meaning deserving of a harsher sentence.
Kavanagh, R-Fountain Hills, said although there are no enhancements of criminal penalties for hate crimes in Arizona law, state statute instructs judges to consider issuing sentences “on the heavy side” of the existing range in the criminal code when factors like race, religion or sexual orientation are involved.
Currently, judges must consider race, color, religion, national origin, sexual orientation, gender or disability as aggravating factors.
Kavanagh’s SB1022 would add “political affiliation, beliefs or opinions” to the list.
“The judge would not have sentencing guidance and would not have a legal support if he threw the book at the person” for a crime motivated by political affiliation at this time, Kavanagh said. His bill would provide direction from the Legislature that, when a crime is done for this purpose, “it’s particularly egregious.”
When told of the bill, retired Maricopa County Superior Court Judge Ken Fields said he was nearly “speechless.”
“It’s like walking through a minefield. That just doesn’t make sense. That’s too generic, too general. I have very strong feelings about Donald Trump, but my strong feelings could become a hate crime?” Fields said.
“That’s a place we don’t want to go as a society. That is a very slippery slope. We’ve got enough aggravating factors in this state… How many more aggravators can you mandate a judge to consider?” he added.
Kavanagh’s inspiration for the bill came from a cellphone video he saw on television during the 2016 election.
It was “two younger guys beating the crap out of some older white guy,” said Kavanagh, who added that, according to the report, the older man was beaten for being a Trump supporter.
“I saw it on Fox News, I don’t know where they got it from,” Kavanagh said.
Dan Pochoda, an attorney for the American Civil Liberties Union of Arizona, said it’s one thing to impose an enhanced penalty on those who attack someone because of something that is “immutable” to them, like race, gender or sexual orientation. But Pochoda called it “very dangerous” to expand that to transient issues, such as who someone is supporting for public office.
Adding political affiliation as an aggravating factor in the same statutes dealing with the protected classes doesn’t necessarily mean Kavanagh believes that a crime motivated by politics is as egregious as a crime motivated by, for instance, race.
“Depending on your particular beliefs or attitudes, clearly each of these classes is not 100 percent equal in terms of blameworthiness,” Kavanagh said.
But political opinions or beliefs should fall into a group that merits a harsher sentence, he said.
There are mitigating circumstances that, hypothetically, could counter the need for a harsher sentence, Kavanagh said.
For example, if a supporter of President-elect Donald Trump was struck by Hillary Clinton supporters after harassing or screaming at them, that’s provocation and, thereby, a mitigating factor, he said.
“The law recognizes mitigating and aggravating factors,” Kavanagh said.
Fields said the bill is typical for legislators who want to treat the criminal justice system “like a computer” – feed in the factors, and you get a certain sentence back.
“You may have the most obnoxious beliefs in the world, but why should I enhance a criminal sentence based on your political belief?” Fields said, adding that lawmakers should let judges do their job and quit taking away their discretion.
“The more discretion you take away, the more inflexible the justice system becomes,” he said.
And an inflexible justice system leads to injustice, he added.
Capitol Media Services contributed to this report.