By Jim Hannah
Enquirer staff writer

BURLINGTON - Boone County's top prosecutor is calling for a tougher hate-crimes law in Kentucky after a cross was burned in a black family's yard.

"There is no meat to Kentucky's hate-crimes law," said Boone County Commonwealth's Attorney Linda Tally Smith. "The cross-burning just illustrates that hole in our statutes."

ON THE WEB

To see how Kentucky's and Ohio's hate-crime laws compare to the rest of the nation, go to the Anti-Defamation League Web site and click on the state hate-crimes laws link in the left-hand column.

Smith isn't alone in her view.

The Anti-Defamation League says Kentucky is one of only five states that doesn't increase the penalty if a crime is committed out of bias-based hate. Ohio included harsher punishments for such crimes.

"It is unfortunate the recent cross-burning had to occur to bring to attention that Kentucky's hate-crimes law is weak," said Bettysue Feuer, a regional director for the Anti-Defamation League. "The incident should be used as an opportunity to put some teeth in the hate-crimes law."

Mark Potok, spokesman for the Southern Poverty Law Center, said Kentucky's law is flawed.

"That is such a weak law that it is almost meaningless," Potok said.

Smith said the two men accused of the cross-burning would have faced only misdemeanor charges of criminal trespassing, criminal mischief, menacing or terroristic threatening in state court. Maximum sentence would be one year in jail.

Smith said that is one of the main reasons the case is being prosecuted in federal court, where each man faces up to 10 years in prison and a $250,000 fine if found guilty of conspiracy to violate civil rights.

"It seems like the feds have gone a long way to be better-prepared for these incidents," she said.

"It seems like it's time for Kentucky's statutes to be better-equipped."

Matthew T. Scudder, 18, of Hebron and Jimmy D. Foster, 19, of Independence are accused of burning a cross at the family's home July 2 and breaking out the windows of their car the following day. The family moved from Boone County within days of the harassment.

Smith said she plans to use her position as president-elect of the commonwealth's attorneys association and member of the prosecutors' advisory council to Gov. Ernie Fletcher to push for stronger hate-crimes legislation.

She would like to see stiffer penalties for the underlying crime if it were found that the motivation was hate-bias.

Smith said the idea is not a new concept. Repeat felony offenders already face tougher penalties if caught. So do those who commit drug crimes with a gun.

Kentucky's hate-crimes law, passed in 1998, states that if hate were determined as a primary factor in the commission of a crime, officials may use that to deny probation or parole.

The law was passed following a rash of hate crimes, including a 1998 cross-burning in Covington. In that case, a cross was made of two broom handles. Signs near the burning cross had "KKK" painted on them. A few years earlier, a white man shot a black man in Covington while yelling racial slurs.

Jennifer Jolly-Ryan, a professor with the Salmon P. Chase College of Law at Northern Kentucky University, has studied Kentucky's hate-crimes law and concluded it has "no teeth."

"Those central to its enactment and enforcement acknowledge that the 1998 version of Kentucky's Hate Crimes Act is simply a starting place for more comprehensive legislation after further study," wrote Jolly-Ryan in an article published in the Kentucky Law Journal.

E-mail jhannah@enquirer.com