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. at (a). Christopher Botts and Angela Pisciotta, along with a third individual, were indicted on charges of aggravated assault and other crimes arising out of the beating of Che and Idris Golden at Little Five Points in Atlanta. Pursuant to the notice provisions of the hate crime penalty statute, OCGA § 17-10-18, the State served Botts and Pisciotta (hereinafter appellants) 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. Constitution and the corresponding sections in the Georgia Constitution. The trial court denied their motions. Appellants thereafter pled guilty to the charges and in separate bench trials contested only the evidentiary basis for the sentence enhancement. 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 vague. A statute is generally considered vague if it is not specific enough to give persons of ordinary intelligence an understanding and adequate warning of the proscribed conduct.
*539
Land v. State,
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. And other courts have recognized that statutes merely setting forth the penalty to be imposed for a crime may not demand the rigorous approach to vagueness applied to statutes defining violations of the law. E.g.,
Webber v. Kansas,
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
*540
the offense “because of bias or prejudice.” Id. at (a). We recognize that persons of ordinary intelligence may understand the dictionary definition of the 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. Unlike the statute addressed in
Mitchell,
supra, which singled out for enhancement specific bias-inspired conduct “thought to inflict greater individual and societal harm” based on the perceived harm that results from crimes motivated by these prejudices, 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.,
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,
We are by no means condoning appellants’ savage attack on the victims in this case or any conduct motivated by a bigoted or hate-filled point of view. We further recognize that the Legislature may appropriately decide, as a general matter, that “bias-motivated offenses warrant greater maximum penalties.” Mitchell, supra, 508 *541 U. S. at 486. 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.
Our holding above renders it unnecessary for us to address appellants’ remaining constitutional arguments.
Judgments reversed.
Notes
In
Mitchell,
supra, the U. S. Supreme Court rejected the argument that Wisconsin’s bias-motivated penalty-enhancement statute punishes only conduct because the statute “enhances the maximum penalty for conduct motivated by a discriminatory point of view more severely than the same conduct engaged in for some other reason or for no reason at all.” Id.,