An attempt by legislators to protect the “cultural significance” of the word “lynching” in California law has made it easier to charge protesters and black activists with felonies, according to legal experts.
When a jury convicted Black Lives Matter organizer Jasmine Richards last week of a law formerly known as “felony lynching,” they followed the language of the law, but not the original intent of it, according to Jody Armour, a USC law professor.
“The precise evil that the lawmakers designed the law to punish and prevent was lynching, not just the taking of a person from police custody, but in order to murder them,” Armour said.
• Photos: Protesters rally to support Jasmine Richards outside Pasadena Courthouse
The Los Angeles District Attorney’s Office charged Richards with Penal Code 405a, or felony lynching.
That law was changed last year to “attempting to unlawfully take a person from custody by means of a riot.” That was and is the original definition of the charge.
A spokesperson for the D.A.’s Office declined to provide an explanation for the decision to choose a felony over a misdemeanor, stating the “evidence speaks for itself.”
What Richards did
Richards was arrested in September at a rally at La Pintoresca Park in Pasadena. Police were attempting to arrest another woman accused of fighting with staff at a nearby restaurant when Richards attempted to pull her away from police. Richards was charged with three misdemeanors, including obstructing an officer, on top of the lynching charge, but never formally charged by the D.A.’s Office of the misdemeanors.
Richards is a frequent figure at Pasadena’s council meetings, where she often advocated for police reforms. This sometimes led to tense exchanges with police officers in the audience.
How the law changed
Governor Jerry Brown and the Legislature, spurred by state Senator Holly Mitchell, removed the word lynching from the code in 2015 because of the word’s cultural significance and its conflict with the vague language of the existing law.
But according to legal experts, the bill is likely why the former lynching law was successful against Richards, but not in previous cases.
The removal of lynching makes the law a felony version of interfering with police officers, but maintains the same punishment — up to four years in prison — as the original offense, which targeted violent offenders.
“They took lynching out, which would have told a lawyer or judge that’s how you read the statute,” Armour said of Mitchell’s bill. “This is the first time that they’ve been able to not only charge, but prosecute somebody without the law saying anything about lynching.”
One juror in Richards’ case wrote to Los Angeles Superior Court Judge Elaine Lu to express his “reluctance” after voting to convict her. While Richards’ crime matched the law’s description, the unidentified juror said the D.A.’s decision to charge Richards with a felony was “the true injustice” and a “political misstep.”
During the trial, Richards’ attorney Nana Gyamfi said she could not describe the law as lynching because of the change, despite the history of the law.
“Just changing the name makes it so we can’t call it what it is at trial,” Gyamfi said. “It would have been a lot different if people on the jury understood what they were looking at was ‘attempted lynching,’ instead of ‘attempted taking someone from the custody of police.’ ”
How breaking that law is punished today
Richards was sentenced Tuesday to 90 days in jail, three years of probation and 52 hours of anger management for her crime. The charge allows for up to four years in jail. Though she’ll serve only months, Richards will have a felony on her record for life.
Helping someone escape from jail — also a felony — only has a maximum sentence of three years under state law.
“A jail break gives you less time than something that before was basically considered to be misdemeanor conduct,” Gyamfi said.
Why Richards’ conviction is different
Richards isn’t the first activist charged with the law, but she is the only conviction in recent years. Charges were dropped or reduced before reaching trial in other cases in Murrieta, San Francisco and Sacramento.
Armour believes the law’s previous title had a “shaming effect” on prosecutors.
“It was so conspicuous that you were taking a law meant for a different purpose and applying it here,” he said.
Mitchell could not be reached for comment. She issued a statement earlier this week urging leniency for Richards.
“It is difficult, when viewing the video of Jasmine Richards’ encounter with police, to follow the reasoning behind a felony conviction,” she stated. “Sadly, this case is likely to contribute to the notion that justice is selectively enforced.”
Her bill found support from both police officers and prosecutors, according to Senate reports.
The origins of the law
Penal Code 405a was enacted in 1933 amid a slate of anti-lynching legislation across the country.
“California was doing something progressive in the 1930s by criminalizing the act of lynching, which is the taking of someone from lawful custody, for the purposes of doing harm to the person,” said Priscilla Ocen, an associate professor of law at Loyola Law School.
Those who lynched people during those times often did so to “send a message” not to step out of line, she said.
“The statute, though it has a progressive history, is now being used against protesters, against activists,” Ocen said. “It’s quite unusual, but we’re seeing a pattern when it comes to movements that are in conflict with law enforcement.”
Ocen said it would be wise of legislators to go back to the law and clarify it, by either adding “for the intent do harm” to the language, or by assessing if the existing punishment fits the new interpretation.
“If this chills protests, I think we will all be worse off for it,” she said. “If something happens, and you’re arrested, this could potentially happen to you.”
The law’s interpretation even makes it possible for a person to be charged for lynching themselves, she said. A protester in San Francisco was charged with lynching himself when he yelled for help while being arrested, according to East Bay Express. The charge was later dropped.
The law’s language as it exists leaves it open to the interpretation of the district attorney’s office, Ocen said.
“If that’s no longer what the statute is criminalizing, the act of lynching, then I think it does call into question its classification as a felony, as opposed to a misdemeanor,” she said.
