Hate crimes bill still in limbo as session nears end

Greek mythology tells the story of Sisyphus, forced to spend eternity pushing a boulder up a hill, only to see it roll back down to the bottom — where he has to start again.

For the past 11 years, since the death of his friend and colleague Sen. Clementa Pinckney in the 2015 Mother Emanuel church massacre, Charleston Democratic Rep. Wendell Gilliard has been pushing a hate crimes bill up the S.C. Statehouse hill.

Twice, in 2021 and 2023, he shouldered it to the top in the S.C. House, passing the bill with big bipartisan majorities — only to see it roll back down to the bottom in the S.C. Senate, where it died without a vote.

Still, Gilliard says he hasn’t given up hope. In fact, he told Statehouse Report this week that he likes his chances of getting the bill through the House again this year — even with the legislation currently stuck in committee and the clock ticking down to a May adjournment.

“Really, I’m optimistic,” Gilliard said. “If there’s one thing I’ve learned in my years of service on Charleston City Council and here in the House, it’s that you have to stay optimistic about anything in South Carolina as it pertains to government.”

Though in this case, he quickly added, his optimism isn’t just about the power of positive thinking.

“Believe it or not, we just left the speaker’s office,” he said, referring to Republican House Speaker Murrell Smith of Sumter. “And we were talking about this bill for almost 40 minutes, going back and forth on how to get it out of the House and approved by the few senators who’ve been holding it up.”

He added, “Hate crimes happen every day. They happen to our Black brothers and sisters, our Jewish brothers and sisters, our White brothers and sisters. And until this bill passes, we’re just turning a deaf ear to these victims because we don’t have a law.”

What’s a hate crimes law — and why doesn’t S.C. have one?

If there’s one thing that supporters and opponents of hate crimes laws generally agree on, it’s this: In America, the First Amendment protects speech — even the speech that offends us most.

That’s why hate crimes laws, including Gilliard’s Clementa Pinckney Act, don’t actually create any new categories of crimes. Instead, they add what are called “sentencing enhancements” to existing offenses such as murder and assault.

Put simply, hate crimes laws impose additional prison time on people who are convicted of committing crimes motivated by hate. And all but two states in the country — South Carolina and Wyoming — have one.

“Hate crimes laws simply say that if you hurt someone because you hate the way they look or believe or love, that can be considered during sentencing,” said Sue Berkowitz, an attorney with the S.C. Appleseed Legal Justice Center. “Why would we not want to do that if it could deter even one person?”

That’s the logic that’s led more than 20 counties and cities across the state to pass hate crimes ordinances at the local level since 2018. But as statewide law proponents note, local ordinances can carry penalties of no more than a $1,000 fine and 30 days in jail — making the laws toothless in the face of violent felony offenses that already carry prison time.

Longtime Richland County Sheriff Leon Lott is a local leader who’s supported hate crimes laws at both the state and local level. And to explain why, he pointed Statehouse Report to the March 19 conviction of a Columbia man in federal court for the hate crime of shooting at his neighbor simply because he was Black.

“This victim was terrorized based entirely on his race,” Lott said, noting that the federal courts are often too backlogged to handle every incident. “A crime against a victim based solely on race, religion or national origin should be prosecuted and held accountable by the state.”

The debate ahead

Regardless of whether hate crimes laws successfully clear the First Amendment hurdle with sentencing enhancements, some GOP members of the House and Senate have argued that they violate the spirit of the Constitution.

Senate Majority Leader Shane Massey of Edgefield discussed that concern with reporters last year, as he allowed a parliamentary maneuver to keep the bill off the floor.

“I’m not a fan of enhancements,” Massey said. “I think we ought to treat everybody the same, and if somebody assaults you, it ought to be the same as a penalty for assaulting me.”

S.C. Freedom Caucus Chairman Rep. Jordan Pace, R-Berkeley, echoed that idea in a Thursday interview.

“There are a lot of us that are of the mindset that we treat everyone equally — you know, the 14th Amendment,” Pace said, invoking the post-Civil War amendment guaranteeing equal protection under the law. “And that to do otherwise would be a violation of that constitutional principle.”

What’s more, he said, from his perspective, the bill’s inclusion of “gender” in addition to “sex” is just an attempt to insert what he called “left-wing ideology” into a S.C. criminal law.

And unlike Gilliard, he thinks the bill is more likely to die in committee than reach the House floor again this session.

“There are just more pressing matters that the voters want us to tackle — gas prices, insurance rates, just a load of affordability problems,” he said. “And I think those affordability issues will take precedence over bumper-sticker ideological priorities like that bill.”

Richland Democratic Sen. Darrell Jackson, who’s been sponsoring hate crimes legislation in the Senate even longer than Gilliard has in the House, disagrees strongly with Pace on the merits but largely shares his forecast.

“I’m not ruling anything out, but with the current mindset and the current calendar, I’m not optimistic,” he said. “We need to be thinking about what we’re going to do to change things if it doesn’t pass this session.”

And that process, he said, should start with sitting down over the summer with business and faith leaders, who mostly support the legislation, but haven’t lobbied with sufficient force to get and keep it moving.

To illustrate what he meant, he pointed to the NIL bill that passed through the two chambers in a matter of days last month thanks to hard and effective lobbying by state universities and their supporters.

“USC and Clemson and others were saying, ‘This is going to put us at a competitive disadvantage if you don’t act,’ and the bill passed quickly,” Jackson said. “Now, we need business leaders to say the same thing about being one of only two states in the country without a hate crimes law. It’s putting us at a competitive disadvantage in terms of economic development.”

As for the concerns some have raised about enhancements, Jackson noted that a bill enhancing penalties for interfering with first responders was allowed to reach the Senate floor this week, where it passed.

“Just give us an opportunity to vote on the hate crimes bill,” he said. “Listen, if the Senate votes it down, then that’s something we’d have to live with. But to not have a chance to vote it up or down is really disturbing.”

And despite his pessimism about the bill’s chances this session, he closed by stressing that continued inaction is a choice.

“This could be done, and done quickly,” Jackson said. “We could pull the bill out of committee right now, put it on the floor for a vote and have it on the governor’s desk before the session ends on May 14.”

He added, “We could put the issue to rest this year.”