Back in November 2013, 18-year-old Sasha Fleischman, fell asleep on the number 57 bus home from school in Berkeley, California. Fleischman who identifies as agender, wore “a t-shirt, a black fleece jacket, a gray newsboy cap and a gauzy white skirt” according to an article by Dashka Slater in the New York Times.
As the AC Transit bus made its way through Oakland another teenager on the bus flicked a lighter, setting fire to Fleischman’s skirt. “Sasha’s legs were left charred and peeling. Taken by ambulance to a San Francisco burn unit, Sasha would spend the next three and a half weeks undergoing multiple operations to treat the second- and third-degree burns that ran from thigh to calf.”
Richard Thomas, the 16-year-old who set Fleischman’s skirt on fire would later be charged as an adult with two felonies, each with a hate crime clause.
In a 2013 article in The Nation magazine Michael Bronski, Ann Pellegrini and Michael Amico explain how hate crime legislation is used.
The term “hate crime laws” is commonplace, but people often do not understand the intent or ramifications of such laws. It is important to understand why they were written in order to understand what they do and don’t do. While hate crime laws proliferated in the early 1980s, their legal roots are deeper. Throughout US history, violent, discriminatory acts against certain groups of people were not taken seriously. One solution was to enact new laws to make sure the laws already on the books were enforced. In the 1930s, when the lynching of African-Americans was pervasive throughout the country — 3,446 black Americans were lynched between 1882 and 1968, one every ten days — activists lobbied Congress to pass anti-lynching laws. These would allow the federal government to legally intercede when states would not. A federal law was never passed. Only in 1968 did the Civil Rights Act make it a federal crime to “by force or by threat of force, injure, intimidate, or interfere with anyone … by reason of their race, color, religion, or national origin.” Soon states began passing their own legislation, based, to a large degree, on a model drafted by the ADL, to which “gender” and “sexual orientation” were later added.
Although all of these laws are worded differently, they usually contain three similar provisions. First, animus against the victim must be explicitly articulated. That is, the perpetrator must actively indicate that the crime is being committed because of a “hate” for the victim’s race, religion, ethnicity or sexual orientation. Second, state or federal authorities will officially keep track of the number of incidents by recording them as hate crimes. Third, hate crimes carry with them “penalty enhancement,” usually meaning stiffer sentencing, because they are understood as injuring not only an individual but a community. In the New York State penal code, for instance, if you are convicted of assault in the second degree, a D felony, you could be sentenced to up to seven years in prison. If your second-degree assault is recorded as a hate crime, the prosecutor can bump the charge up to a third-degree assault, a C felony, which carries a sentence of up to fifteen years. Continue reading…
As The Nation article describes, while some liberal groups have argued hate crime laws protect people, others have criticized such legislation as being selectively enforced, with poor people and people of color disproportionately charged and imprisoned.
As Slater writes “a majority of those charged with bias crimes do not fit the stereotype of the squinting, bristle-headed loner sporting a swastika tattoo.” Thomas too does not fit that description. He was on the bus on his way back home to “Deep East” Oakland. Later, he would write to Fleischman, apologizing for his actions. “I am not a thug, gangster, hoodlum, nor monster. Im a young african american male who’s made a terrible mistake” he wrote “i’ve also been hurt alot for no reason, not like i hurt you but ive been hurt physically and metally so i know how it feels, the pain and confusion of why me i’ve felt it before plenty of times.”
From a young age, Richard lost family and friends to violence. In addition to his aunt Savannah, killed in a spray of bullets while sitting in a car in San Francisco, his aunt Tish was murdered by her boyfriend in 2008. Three of his childhood friends were murdered as well, most recently his best friend, Tyronta Mickens. People used to say Richard and Tyronta were twins, because they were both handsome, light-skinned boys with a goofy sense of humor and a penchant for practical jokes. When Richard was 14, the two were sent to a group home in Redding, after they were involved in a fight with some skateboarders. (Because Richard was a juvenile, the details of the case are sealed.) Tyronta was released before Richard, but shortly after that, on Jan. 7, 2013, he was shot multiple times while sitting in a car in an East Oakland parking lot. Continue reading…
Thomas’ early experience of the criminal justice system is not unusual in Oakland. Slater cites an investigation by the San Francisco Chronicle which found that “of some 600 black male students who start at Oakland high schools as freshmen each year, only about 300 end up graduating and fewer than 100 graduate with the requirements needed to attend a California state college or university.”
The odds of landing in the back of a police cruiser, on the other hand, are much better. African-American boys make up less than 30 percent of Oakland’s under-age population but account for nearly 75 percent of all juvenile arrests. And each year, dozens of black men and boys are murdered within the city limits. Continue reading…
The decision to charge Thomas as an adult with a hate crime clause came in for criticism. The enhancement was added in part because of Thomas’ answers under police interrogation. While he initially said that he set fire to Fleischman’s skirt because he was “being stupid” he later described himself as “homophobic.” As Slater writes Thomas’ lawyer criticized the decision to charge him under hate crime legislation. “he argued that it made no sense to describe a child’s still-forming opinions as “hate.”
O’Malley, the district attorney, didn’t see it that way. “If somebody commits a heinous crime against somebody because they’re a member of a protected class, that is very purposeful discrimination,” she explained as we sat in her office, before a massive wooden desk that belonged to Earl Warren when he was the Alameda County D.A. Hate crimes, she argued, were discrimination, just as segregation was. “It’s important to show that this is the kind of behavior that will never be tolerated.”
Until the mid-1980s, the law made no distinction between crimes motivated by bigotry and crimes motivated by money, passion or boredom. Murder was murder; vandalism was vandalism. The term “hate crime” arose in response to what was described at the time as an “epidemic” of neo-Nazi and skinhead violence, although in retrospect it’s unclear whether any such epidemic existed. Since then, the number of bias-motivated prosecutions has steadily declined. In California, a state with close to 39 million people, hate-crime prosecutions have fallen 48 percent since 2003, with just 158 bias crimes filed for prosecution in 2012.
A majority of those charged with bias crimes do not fit the stereotype of the squinting, bristle-headed loner sporting a swastika tattoo. Researchers estimate that fewer than 5 percent are members of an organized hate group. Most are young males, either in their teens or early 20s, acting in a group. In a study of Boston hate-crime prosecutions in the early 1990s, two-thirds of the offenders were categorized as “thrill-seeking” — that is, they were groups of young people “looking for some fun” at the expense of someone they regarded as lower on the totem pole. The authors of the study found that many of these offenders weren’t even particularly biased toward their victims but were following the lead of a more biased peer.
Many hate crimes, according to Phyllis B. Gerstenfeld, a criminal-justice professor at California State University, Stanislaus, “don’t have as much to do with the victim as they do with the offender and their own insecurity — which of course is a lot of what’s going on with adolescents in general.”
Two groups that might have been expected to support O’Malley’s decision to charge Richard as an adult, the National Center for Lesbian Rights and the Transgender Law Center, wrote to her in November 2013, asking her to reconsider. “When juvenile impulsivity and poor judgment produce dire consequences, it does not make sense to craft a response intended for adults,” they said in a letter that was also sent on behalf of the A.C.L.U. of Northern California. “Rather, these are the very circumstances under which it is important to remember that children are different from adults.” The letter concluded: “We firmly believe that you can demonstrate your office’s commitment to protecting the victims of hate crimes without imposing adult sanctions on juvenile offenders.” Continue reading…
As Slater writes, Thomas was offered a plea deal which would have seen the mayhem charge and hate crime enhancement dropped in exchange for a five year sentence. On the day he planned to accept that deal the sentence offered by the District Attorney was abruptly changed to seven years. While Thomas’ could still be released in five years, the longer sentence increases the likelihood that he will serve some of that time in state prison.
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