This year's efforts to step up penalties for hate crimes could look very different from the heated debates over protected categories that have stalled the legislation in the past.
Several options are still on the table for enforceable hate crimes legislation, but longtime sponsor Rep. David Litvack, D-Salt Lake, says "the number one candidate" would drop the categories.
It would also replace the penalty enhancement with an aggravating factor to be considered by the sentencing judge or the Utah Board of Pardons and Parole.
Litvack said the possible new direction arose out of a working group as a way to "hopefully take some of the venom out of the issue" and garner Republican support for the measure.
The bill has repeatedly failed amid criticism that "a crime is a crime" or that victims who aren't in a protected category wouldn't get equal protection.
The failed bill would have enhanced penalties for crimes committed because of bias or prejudice against protected groups categorized by race, color, disability, religion, sexual orientation, national origin, ancestry, age and gender.
The legislation had support from law enforcement and prosecutors who say a 1992 civil rights statute is unenforceable after being stripped of its list of categories.
A new draft proposal would make it an aggravating sentencing factor if a victim or property is selected primarily because of membership or perceived membership in a group.
"It's not the complete package that we were hoping for in terms of enhancements, but it is a step up from where we are currently," Litvack said. "It does provide a tool to hold offenders of hate crimes accountable."
Litvack said he won't make a decision on what the hate crimes bill will look like until he gets more community feedback and makes sure "we fully understand it.
"The more I talk about it, the more I listen to people in the community, the more I think about the process over the last nine months. . . . It's a positive step," he said.
Senate President John Valentine called the idea "interesting" and said he'd like to see the details, though he declined to speculate on whether he'd support it.
"I can confirm that having categories of groups has been a major stumbling block in past approaches," he said. "If you're in the 'right' group you get protection; if you're not in the 'right' group you don't."
A Georgia hate crimes law that didn't name categories was stricken down as unconstitutionally vague by that state's Supreme Court.
However, Utah Attorney General Mark Shurtleff, along with legal scholars in a working group, say the new Utah legislation would pass constitutional muster.
That's because it contains a section requiring consideration of the degree to which the victim's selection is likely to cause emotional or other harm or incite community unrest, Shurtleff said.
Shurtleff points to language in the Georgia ruling that looked for that sort of language, which was absent in Georgia's law.
"This is something we can pursue. The question is, is it watering it down?" Shurtleff said. "I don't think it does."
Paul Boyden, executive director of the Statewide Association of Prosecutors, said the aggravation doesn't step up a penalty as would an enhancement, for example, from a third-degree to second-degree felony. Instead, it's meant to help a judge or Utah Board of Pardons and Parole decide what sentence is appropriate within a range, he said.
"Judges and the Board of Pardons to some degree do take this into consideration already," Boyden said. "If you memorialize something, it gives the judge something to hang his hat on."
E-mail: dbulkeley@desnews.com