Case Explained: AG’s opinion says only SC legislators can create a hate crime. But 2 dozen local laws still stand. • SC Daily Gazette – Legal Perspective

COLUMBIA — Hate crime ordinances in municipalities across South Carolina would likely be struck down as overstepping their legal authority, according to an analysis by the state attorney general’s office, which on Tuesday appeared unlikely to affect lawmakers’ debate over a state crime.

Supporters, however, pledged to try again.

The nonbinding legal opinion concludes that the ordinances may violate both the state constitution’s ban on local governments creating criminal law and — depending on what they criminalize — the U.S. Constitution’s free speech rights under the First Amendment.

“The use of hatred to intimidate others is repulsive and has no place in society,” Solicitor General Robert Cook wrote, stressing he doesn’t want to undermine local governments’ ability to “condemn racial, religious, or other forms of hatred. We condemn these as well and fully support Home Rule.”

However, he continued, “criminal hate crime ordinances have been rendered ‘off limits’ by our State Constitution and this form of criminal behavior may be addressed only by the General Assembly.”

Regardless, he notes, the existing local rules remain fully in place “unless and until a court decides otherwise.”

The opinion, dated Oct. 10, was sought by Greenwood’s city attorney, after a resident called on City Council during a public meeting in June to pass its own ordinance. Attorney James Padgett’s concerns were largely confirmed in the opinion.

“Whether we can do something or not, this is really an issue that needs to be taken up by our Legislature,” Mayor Brandon Smith, a former state Municipal Association board member, told the SC Daily Gazette.

Why the ‘patchwork’?

South Carolina is among just two states without a specific hate crime law. (Wyoming is the other.)

As attempts to pass a law repeatedly failed in the Legislature, two dozen towns and cities, as well as two counties, have passed local rules making it unlawful to intimidate someone because of who they are, to include their race, religion, gender identity or disability. The latest city was Spartanburg, where a “hate intimidation” offense was adopted unanimously Monday night.

Penalties for violators vary. Possibilities include community service, participation in an anti-bigotry education program, a $500 fine, and up to 30 days in jail.

Such a “patchwork” statewide is what the state constitution sought to avoid, Cook wrote.

House Minority Leader Todd Rutherford disagreed with that analysis.

“He’s saying cities and counties can’t come up with their own crimes because they can’t exceed state law. Well, there’s no state law on it,” said the Columbia Democrat.

Both the capital city and surrounding Richland County have passed hate crime ordinances. Rutherford, an attorney, said local governments could respond to a legal challenge by simply removing the criminal penalty.

“Cities should look to address as much as possible hate in South Carolina and take a stand,” he told the SC Daily Gazette. “It needs to be punished when people act on their hate.”

Violence motivated by hate is unfortunately becoming increasingly common, he said, and government should step in to tell people that won’t be tolerated.

“We can’t allow that because when people feel they can do that, that’s when society goes off the rails,” Rutherford said.

His caucus will push again for legislation next year, he said, while acknowledging approval hinges on the Senate.

Since 2021, the House has twice passed legislation that would add penalties for people convicted of committing a crime due to their victim’s race, gender or sexual orientation. But those proposals never got a vote on the Senate floor, with GOP opponents saying proving hate involves prosecuting thoughts, and violent crimes already carry stiff penalties.

Senate Majority Leader Shane Massey said Tuesday he agrees that only the Legislature can set criminal law. He also agrees there’s been an alarming increase in violence fueled by anger and hatred. But he still opposes creating a state hate crime.

The answer, he said, should be criminal laws that punish severely regardless of the victim’s identity.

“It shouldn’t depend on what city you live in. If the law’s insufficient, let’s address the law,” said the Edgefield Republican. “I think it’s culturally destructive policy to enshrine in the law that some people are more important than others, and we’re going to treat people differently.”

He’s not budged by criticism that South Carolina is nearly alone in its lack of a hate crime, he said, noting the existence of a hate crime in other states clearly isn’t dissuading violent, hate-fueled crime.

“Look at how well they’ve worked,” he said about other states’ laws. “It hasn’t done anything to protect those victims that it’s designed to protect.”

In Columbia, one of the first cities to pass an ordinance, a review of charges in 2020, a year after its passage, found most involved racial slurs. Those charged included two Black homeless men. At least one case was later dismissed.

Massey contends the punishment for violent crime is often already more severe in South Carolina than in Democrat-led states with a hate crime statute. In cases of murder, punishment can include life without the possibility of parole or death: “We don’t need a hate crime to get you there,” he said of death row.

Senate rules allow a single senator to block legislation, at least temporarily. While opposed to hate crime bills, Massey has not been among GOP senators to officially object to them and block debate. An objection can be overridden by a vote that puts a bill on special debate status. But so far, hate crime proposals have lacked majority support among the Senate’s dominating Republicans for Massey to call for a public vote.

A death penalty comparison

Sen. Tom Davis, who supports hate crime legislation, said he’ll try again next year to persuade his GOP colleagues. He points to the state’s death penalty statute in hopes of changing their mind.

In South Carolina, killers can be sentenced to death only after they’re convicted of murder, and the crime must involve at least one factor on a list of “aggravating circumstances,” such as happening during a burglary or kidnapping, or the victim being a child.

Davis, R-Beaufort, likens the boost to a death sentence to the enhanced penalties allowed by a hate crime law.

The bill last passed by the House in 2023 would have added up to five years in prison and a $10,000 fine to the sentence of a hate-motivated violent crime.

“We’re not talking about making thoughts a crime or speech a crime or making a new felony,” he told the Gazette. “Certain crimes are more heinous than others, and we already recognize that.”

While he understands local officials’ frustration in passing their own hate crime ordinances, Davis said he nonetheless agrees with the attorney general’s opinion.

The governor weighs in

“I think it’s a matter that needs some debate,” Gov. Henry McMaster told reporters at the Statehouse on Tuesday.

His concern is that passing a hate crime law would give law enforcement the power to conduct expansive searches of people’s homes and possessions to prove their motivation came from a place of hate, he said.

“We have so many laws now that cover A to Z, with penalties that can be very severe,” McMaster said. “The judges and magistrates, I believe, are the answer. If they use those laws that we already have and implement them fully and carefully, then that would be the way to keep the lid on things.”

The governor stopped short of saying existing local ordinances should be challenged in court. If someone wants a ruling to throw them out, they’re welcome to try, he said.

“It’s a free country,” McMaster said.

Reporter Skylar Laird contributed to this report.