After several failed attempts at passing legislation that would enhance penalties for hate crimes, Rep. David Litvack, D-Salt Lake, says he's considering a new approach.

Attorney General Mark Shurtleff is proposing a new approach that would remove protected categories that have repeatedly bogged down the legislation.

Last year's failed legislation would have stepped up 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.

Some opposing legislators have said a crime is a crime, and that hate crimes legislation could hurt crime victims who don't fall in one of the listed categories.

"It's very clear it won't pass if we keep coming to the same list of categories," Shurtleff said.

Shurtleff declined to discuss details Thursday, saying he expected wording to be nailed down after a meeting of a working group this morning.

Litvack says he hasn't committed to Shurtleff's approach, but he's keeping an open mind. In the past, Litvack has refused to remove the categories.

"I haven't dismissed or given up on (the list). But the political reality is, we haven't been successful in passing that," Litvack said. "So I don't want to close options off before fully exploring that. But again, the bottom line to me is, I personally will not move forward on something different than what we've been doing, unless I'm completely confident it will provide us that effective tool."

Shurtleff said his proposal would give prosecutors and law enforcement the tools they need to charge a hate crime.

"I wouldn't be proposing it if I thought it watered it down," Shurtleff said.

A statewide coalition of law enforcement officers and prosecutors, including Shurtleff, say a 1992 law was stripped of its list of protected categories and is unenforceable, because it requires proving an intent to deprive someone of constitutional rights, in addition an intent to intimidate or terrorize. State and federal appeals courts have said the law is a civil rights statute, not a hate crimes law.

A working group of legal scholars, prosecutors and representatives of the Attorney General's Office has been discussing legislative possibilities since the close of the 2005 Legislature, Litvack said.

Shurtleff said the discussions included revamping language gleaned from a Georgia Supreme Court ruling that declared a hate crimes law without protected categories unconstitutionally vague.

"And that's where the questions come in: Is it enforceable? Constitutional? Does it provide the tool we need? Those are the questions we're still answering," Litvack said.

Shurtleff said the proposal has been looked at by Brigham Young University and University of Utah law professors and other scholars, who "think this proposal will pass constitutional muster." He's hoping it will also be palatable for a Republican co-sponsor.

Attempts to create what advocates call an enforceable hate crimes law began in the late 1990s by the late Sen. Pete Suazo, D-Salt Lake, and for the past five years has been unsuccessfully carried by Litvack.

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E-mail: dbulkeley@desnews.com