The provisions of the bill addressing felony sanctions are the subject of this analysis.  The bill would amend the Code of Criminal Procedure as it relates to the affirmative finding of bias or prejudice. The bill would expand the list of group types against which specific offenses would require a judge to enter an affirmative finding that an actor selected a victim with intentional bias or prejudice because of the victim's membership in the group.  An affirmative finding of this type may be used to enhance the penalty for arson, criminal mischief, graffiti and all Title Five offenses. In certain circumstances and for certain offenses, under existing statute, an affirmative finding of bias or prejudice will preclude the option of community supervision.

A second degree felony is punishable by confinement in prison for a term from 2 to 20 years and, in addition to confinement, an optional fine not to exceed $10,000.  A third degree felony is punishable by confinement in prison for a term from 2 to 10 years and, in addition to confinement, an optional fine not to exceed $10,000.  A state jail felony is punishable by confinement in a state jail for a term from 180 days to 2 years and, in addition to confinement, an optional fine not to exceed $10,000 or Class A misdemeanor punishment.  A Class A misdemeanor is punishable by confinement in county jail for a term not to exceed one year and, in addition to confinement, an optional fine not to exceed $4,000.

Expanding the list of behaviors for which a criminal penalty may be enhanced is expected to result in additional demands upon the correctional resources of the counties or of the State due to longer terms of supervision in the community or longer terms of confinement within state correctional institutions.  Whether the bill would result in a significant impact on state correctional populations is indeterminate due to a lack of statewide data containing the level of detail necessary to separate cases in which an offense was motivated by bias or prejudice because of an individual's sexual orientation or gender identity from all others cases.  For fiscal years 2018 through 2020, an average of 97,054 persons were arrested, 15,262 were placed onto community supervision, and 7,780 were admitted into state correctional institutions per year for offenses which would require an affirmative finding of bias or prejudice if, at trial, bias or prejudice was determined to have motivated the offense.