CopyCited 6 times | Published | Supreme Court of Georgia | Oct 25, 2004 | 278 Ga. 538
...Howard, Jr., District Attorney, Bettieanne C. Hart, Holly B. Hughes, Assistant District Attorneys, Thurbert E. Baker, Attorney General, Paula K. Smith, Senior Assisant Attorney General, for appellee. HUNSTEIN, Justice. These appeals involve challenges to the constitutionality of OCGA §
17-10-17, Georgia's hate crime penalty statute, which requires the enhancement of criminal sentences whenever the fact finder determines beyond a reasonable doubt "that the defendant intentionally selected any victim or any property of the victim as the object of the offense because of bias or prejudice." Id....
...s) with notice of the State's intent to seek sentence enhancement based on the State's allegation that appellants selected their victims because of racial bias and prejudice. Appellants moved to dismiss the sentence enhancement, contending that OCGA §
17-10-17 violated their rights under the First, Fifth, Eighth and Fourteenth Amendments to the U.S....
...t. The trial court determined that the evidence showed beyond a reasonable doubt that appellants had intentionally selected the victims as the objects of their offenses because of bias or prejudice and enhanced appellants' sentences pursuant to OCGA §
17-10-17. This appeal ensued. We agree with appellants that OCGA §
17-10-17 as enacted is unconstitutionally *514 vague....
...674,
424 S.E.2d 274 (1993) (statute "`sufficiently definite if its terms furnish a test based on normal criteria which [persons] of common intelligence who come in contact with the statute may use with reasonable safety in determining its command'"). The State argues that OCGA §
17-10-17 is not vague because the underlying criminal statute, here, aggravated assault, OCGA §
16-5-21, provided appellants with fair notice of the prohibited conduct. Obviously, the commission of criminal conduct for which an individual is convicted is a prerequisite to the application of OCGA §
17-10-17, as is true of all sentencing statutes....
...E.g., State v. Webber, 260 Kan. 263, 918 P.2d 609 (1996); see also Hankin v. Florida,
682 So.2d 602, 603 (Fla.App.1996) (sentencing statute that allows enhanced penalty where offense resulted in substantial economic hardship to victim not vague). However, OCGA §
17-10-17, unlike those penalty provisions, punishes an individual's commission of purposeful conduct, namely, the intentional selection of the victim or the victim's property because of bias or prejudice. Accord Wisconsin v. Mitchell,
508 U.S. 476, 485,
113 S.Ct. 2194,
124 L.Ed.2d 436 (1993) (First Amendment challenge to Wisconsin's bias-motivated penalty-enhancement statute). [1] We thus reject the State's argument that OCGA §
17-10-17 itself did not have to provide persons of ordinary intelligence with notice as to what it prohibits so that they may conduct themselves accordingly. We conclude that the due process clauses of the Federal and State Constitutions require that OCGA §
17-10-17 give fair notice to individuals potentially subject to its sentencing provisions of the intentional conduct that may warrant enhanced punishment. OCGA §
17-10-17 enhances a criminal sentence where the fact finder determines beyond a reasonable doubt that the defendant intentionally selected a victim or the victim's property as the object of the offense "because of bias or prejudice." Id....
...words "bias" and "prejudice." However, because of the broad signification of these words and the absence of any specific context in which a person's bias or prejudice may apply in order to narrow the construction of these concepts, we find that OCGA §
17-10-17 fails to provide fair warning of the conduct it prohibits....
...ejudices, e.g., the greater likelihood that bias-motivated crimes will "provoke retaliatory crimes, inflict distinct emotional harms on their victims, and incite community unrest," id.,
508 U.S. at 487-488,
113 S.Ct. 2194, the broad language in OCGA §
17-10-17, by enhancing all offenses where the victim or his property was selected because of any bias or prejudice, encompasses every possible partiality or preference....
...he selected victim or property, no matter how obscure, whimsical or unrelated to the victim it may be, but for which proof beyond a reasonable doubt might exist, can serve to enhance a sentence. Absent some qualification on "bias or prejudice," OCGA §
17-10-17 is left "`so vague that persons of common intelligence must necessarily guess at its meaning and differ as to its application.'" Payne v. State,
275 Ga. 181, 183,
563 S.E.2d 844 (2002). Accordingly, we hold that OCGA §
17-10-17 is too vague to justify the imposition of enhanced criminal punishment for its violation. We conclude further that OCGA §
17-10-17 may not be upheld because it "`impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on an ad hoc and subjective basis, with the attendant dangers of arbitrary and discriminatory applications. (Cit.)' [Cit.]" Thelen v. State,
272 Ga. 81, 82-83,
526 S.E.2d 60 (2000). OCGA §
17-10-17 "leaves open ......
...We further recognize that the Legislature may appropriately decide, as a general matter, that "bias-motivated offenses warrant greater maximum penalties." Mitchell, supra,
508 U.S. at 486,
113 S.Ct. 2194. However, as drafted, the broad language of OCGA §
17-10-17 fails to comport with the ascertainable standards required by the due process rights guaranteed by our State and Federal Constitutions....
