Criminal Defense Lawyers

How Do South Dakota’s Sentencing Guidelines Address Hate Crimes?

Understanding South Dakota’s Hate Crime Laws and Sentencing

What Constitutes a Hate Crime in South Dakota?

Under South Dakota law, a hate crime, also known as “malicious intimidation or harassment,” occurs when a person maliciously and with the specific intent to intimidate or harass another person because of that person’s race, ethnicity, religion, ancestry, or national origin:

1. Causes physical injury to another person; or
2. Damages or destroys any real or personal property of another person; or
3. Threatens, by word or act, to do the acts prohibited if there is reasonable cause to believe that any of the acts prohibited in subdivision (1) or (2) of this section will occur.

Deface, as used in this section, means to alter the appearance of something by removing, distorting, adding to, or covering all or part of the thing. It’s important to note that South Dakota’s hate crime law does not currently include gender, gender identity, disability, or sexual orientation as protected categories. However, hate crimes targeting these groups may still be prosecuted under other criminal statutes.

Hate Crimes as Felony Offenses in South Dakota

In South Dakota, malicious intimidation or harassment is classified as a Class 6 felony. This means that a person convicted of a hate crime faces serious penalties, including:

• Up to 2 years imprisonment in the state penitentiary and a fine of up to $4,000; or
• Up to 1 year in county jail and a fine of up to $2,000

The judge has discretion in sentencing and may choose between the state penitentiary sentence or the county jail sentence.

Firearm Restrictions for Hate Crime Convictions

In addition to imprisonment and fines, a hate crime conviction in South Dakota can also impact a person’s right to possess firearms. Under state law, a person convicted of a “crime of violence” is prohibited from possessing or having control of a firearm for 15 years after completing their sentence. Many hate crimes, especially those involving physical injury or the use of force, would likely fall under the definition of a “crime of violence” and trigger this 15-year firearm prohibition. Even if a hate crime conviction does not meet the state’s definition of a “crime of violence,” it is still a felony that would make the person subject to federal firearm restrictions. 

Federal Hate Crime Laws and Sentencing Enhancements

In addition to state-level hate crime laws, there are also federal statutes that provide for the prosecution of hate crimes. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act of 2009 makes it a federal crime to willfully cause bodily injury, or attempt to do so using a dangerous weapon, because of the victim’s actual or perceived race, color, religion, national origin, gender, sexual orientation, gender identity, or disability.Federal hate crime charges can result in significant penalties, including up to 10 years in prison, or even life imprisonment if the offense includes kidnapping, aggravated sexual abuse, or an attempt to kill. Furthermore, if a person is convicted of a federal crime that is proven to be hate-motivated, they may be subject to enhanced penalties at sentencing. Under the Federal Sentencing Guidelines, if the court determines beyond a reasonable doubt that the defendant intentionally selected the victim because of their actual or perceived race, color, religion, national origin, ethnicity, gender, gender identity, disability, or sexual orientation, the sentencing court may increase the defendant’s offense level. 

Reporting Hate Crimes and Seeking Justice

If you believe you have been the victim of a hate crime in South Dakota, it’s crucial to report the incident to law enforcement as soon as possible. Timely reporting can help preserve evidence and increase the likelihood of a successful investigation and prosecution. When reporting a hate crime, be sure to:

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1. Provide as many details as possible about the incident, including any biased language or symbols used by the perpetrator.
2. Document any injuries or property damage with photographs.
3. Retain any physical evidence, such as threatening letters or vandalized items.
4. Get contact information for any witnesses who may have seen the incident.

In addition to reporting to law enforcement, victims of hate crimes in South Dakota can also seek support and assistance from organizations such as the South Dakota Network Against Family Violence and Sexual Assault, which provides services to victims of bias-motivated crimes.

The Importance of Comprehensive Hate Crime Laws

While South Dakota’s current hate crime law provides some protections, many advocates argue that the state’s statute should be expanded to include additional protected categories such as gender, gender identity, disability, and sexual orientation. Comprehensive hate crime laws send a clear message that bias-motivated violence will not be tolerated and help ensure that all victims have access to justice. As a society, it’s essential that we stand united against hate and work to create communities where all people feel safe and respected, regardless of their identity. By understanding and enforcing hate crime laws, we can take an important step toward achieving this goal.

Frequently Asked Questions About Hate Crimes in South Dakota

Q: What should I do if I witness a hate crime in progress?

A: If you see a hate crime occurring, your first priority should be to ensure your own safety. If it is safe to do so, you can try to intervene by calling out the biased behavior or asking the perpetrator to stop. However, if the situation appears violent or dangerous, do not attempt to confront the perpetrator directly. Instead, call 911 immediately and report what you have witnessed to law enforcement.

Q: Can a hate crime charge be added to other criminal charges?

A: Yes, a person can face hate crime charges in addition to any other criminal charges that may apply to their conduct. For example, if a person physically assaults someone because of their race, they could be charged with both assault and malicious intimidation or harassment under South Dakota’s hate crime statute.

Q: What if I’m not sure if an incident qualifies as a hate crime?

A: If you believe you may have been the victim of a hate crime or have witnessed a bias-motivated incident, it’s always best to report it to law enforcement and let them investigate. Even if the incident does not meet the legal definition of a hate crime, it’s important to document and address any form of bias or discrimination in our communities.

Q: Are there any civil remedies available to hate crime victims in South Dakota?

A: In addition to criminal prosecution, victims of hate crimes in South Dakota may also have the option to pursue civil lawsuits against their perpetrators. Civil suits can allow victims to seek monetary damages for injuries, property damage, or emotional distress caused by the hate crime. Consulting with an experienced civil rights attorney can help hate crime victims understand their legal options.

Q: How can I support efforts to combat hate crimes in my community?

A: There are many ways to get involved in the fight against hate crimes, including:

1. Educating yourself and others about hate crimes and their impact on individuals and communities.
2. Supporting organizations that provide services to hate crime victims or work to prevent bias-motivated violence.
3. Advocating for comprehensive hate crime laws and improved reporting and data collection on bias incidents.
4. Promoting diversity, equity, and inclusion in your workplace, school, or community group.
5. Speaking out against biased or discriminatory language and behavior when you encounter it.

By working together to address hate and bias at both the individual and societal level, we can create a safer, more just world for all.