As law enforcement officials continue to investigate the weekend shooting in Burlington that wounded three college students — two of whom are Palestinian American and a third who is Palestinian — they’ll be weighing whether to pursue hate crime charges.
A review of recent cases in Vermont suggests it may be difficult for prosecutors to prove a hate crime occurred unless the defendant made incriminating statements during the incident.
According to court records, Hisham Awartani, Kinnan Abdalhamid and Tahseen Ali Ahmad were walking on North Prospect Street, speaking a mixture of English and Arabic. Two of the three were also wearing keffiyehs — traditional Palestinian scarves. Jason J. Eaton, a 48-year old white man, allegedly stepped off a porch and without speaking, fired at least four rounds from a pistol.
All three young men were hospitalized. Awartani was hit in the spine, Abdalhamid in the glute and Ali Ahmad in the upper chest, court records say. Abdalhamid was released from the hospital on Tuesday, while Awartani and Ahmed remain hospitalized, according to a statement from Abdalhamid’s parents, shared by the Institute for Middle East Understanding.
Awartani’s mother told NPR on Monday that her son might not be able to walk again.
Eaton was charged with three counts of attempted murder on Monday and is being held in prison without bail. He faces a life sentence if he’s convicted. But state law enforcement officials said on Monday there wasn’t enough evidence at that time to support hate crime charges — which is something that victims’ families are calling for.
“It seems like it's a hate crime to me — it seems that way to all the family,” said Radi Tamimi, the uncle of Kinnan Abdalhamid, speaking to reporters after a press conference on Monday. “But again, we're letting due process take its course. But the family strongly believes this was motivated by that — by hate.”
Reports of Islamophobia — and antisemitism — have increased in the U.S. following the latest outbreak in the Israel-Hamas war since Oct. 7.
Chittenden County State’s Attorney Sarah George said during the press conference on Monday that to bring a hate crime charge, her office needs to be able to prove beyond a reasonable doubt that bias motivated the criminal act.
“Sometimes that's quite clear, based on things that might have been said by the defendant or things that may have been immediately present in an apartment or online,” George said. “But we do need direct and great evidence to support that additional element.”
In Vermont, recent hate crimes charges have only been filed in cases where the defendant uttered a slur during the crime. While the investigation into the Burlington shooting is still in its early days, public records available so far do not offer any information that Eaton spoke during the incident.
How Vermont’s hate crime statute works
Vermont doesn’t have a standalone hate crime charge. Instead it has a hate crime “enhancement,” which can be added to a charge if the defendant’s actions are motivated by bias towards a protected class, which includes race, gender, class, and sexual orientation. The enhancement increases the criminal penalties a defendant faces.
For example, a disorderly conduct charge carries a maximum sentence of 60 days in prison. But if someone is charged with disorderly conduct with a hate crime enhancement, they could face two years in prison. If a charge carries a maximum prison sentence of five years or more, the hate crime enhancement doesn’t increase the possible criminal penalty, but it can be used by the court as a factor in sentencing, according to the statute.
Former Windsor County State’s Attorney David Cahill said adding a hate crime enhancement could be a major factor in a judge's sentencing decision. Cahill pointed to a person convicted of second degree murder as an example. The charge has two sentencing options: life without parole or 20 years to life in prison.
“The presence of the aggravating factor that this is a hate crime could be cited by the court as why it is choosing option A — life without parole — and not [option] B, 20 years to life,” Cahill said in a phone interview on Tuesday.
Prosecutors in Vermont have filed 93 hate crime enhancement charges since 2018, according to data from the judiciary. Most were brought in disorderly conduct or aggravated disorderly conduct cases — charges that only carry a maximum sentence of a few months in prison.
Using a hate crime enhancement in a low-level case is common and can be a way to send a message about conduct that would ordinarily result in a relatively light penalty, Cahill said.
“Your average disorderly conduct case, depending upon the county, it might go straight to diversion, it might go to pre-trial program, it might be a $100 fine,” Cahill said. “But if someone engages in the same conduct, and does so for overtly racist reasons, the injuries to society, I would argue, is greater. And the response in turn from society should be more significant.”
Prosecutors haven't attached hate crime charges to any serious violent crimes in recent years, including in the fatal stabbing of a transgender woman in Morristown last year.
There have been violent incidents where prosecutors allege bias-motivated crimes.
According to court records, a man in Richford tried to hit a Black man with his truck in 2021 because he believed his girlfriend was having an affair with the man. The defendant was yelling racial slurs as he drove with a truck around the property, court records say. The man was charged with multiple crimes, including attempted murder, unlawful mischief and gross negligent operation. But only the disorderly conduct charge included a hate crime enhancement.
The man pleaded guilty to aggravated assault, and the rest of the charges, including the attempted murder and disorderly conduct charge with a hate crime enhancement, were dismissed.
A review of a dozen recently-filed hate crime cases found that all the incidents involved a person using racial, ethnic or homophobic slurs during the alleged crime. Two cases were filed against suspects who yelled racial slurs at Black police officers while they were being arrested, and another case was filed against a man who used homophobic slurs while he allegedly threatened to have his son shoot his parole officer, who’s gay. The threats caused the parole office “fear of imminent danger for his life,” court records say.
Law enforcement officials say that kind of evidence is crucial to bring a hate crime charge.
“You have to have the original crime that occurs —the vandalism, the assault — and then … the person committing it has to exhibit some type of, or verbalize in some way, what their motivation of what the crime is,” said Garry Scott, the former director of fair and impartial policing for Vermont State Police, during an interview on Tuesday.
Recent history suggests it’s difficult to obtain convictions in hate crime cases, even if there’s some evidence of bias. In 2018, the Vermont Supreme Court overturned a disorderly conduct conviction with a hate crime enhancement of a man who allegedly put Ku Klux Klan recruitment flyers in the mailboxes of a Black woman and a Mexican woman in Burlington. The high court ruled that the conduct didn’t convey an “imminent threat of harm.”
In other cases, hate crime charges have been dropped as part of plea deals, like in an incident where an Essex man shouted racial slurs and waved a gun at a convenience store clerk and another where a teenager was accused of spray painting racial epithets on a high school athletic field.
Scott, the former state trooper, said it can be challenging to see cases where it appears bias played a role, but there isn’t enough evidence to bring a hate crime enhancement charge.
“We all sort of feel it and know that that is what happened and that's what systemically has been happening for a long time,” Scott said. “But now really putting that into language that the law can understand it and then prosecute on it — that's the gap we're still in, and we haven't really cleaned up really well.”
The Legislature has tried to make it easier to prosecute hate crimes in Vermont and in 2021 amended the law to classify hate crimes as actions “motivated in whole or in part” by a "victim’s actual or perceived” identity. Previously, the statue said the crime needed to be “maliciously motivated.”
Chittenden County State’s Attorney Sarah George, speaking at Monday’s press conference, said she’s not sure if the amended law would make bringing charges easier.
“We haven't had to test it, so it's hard to really say for sure,” George said. “But I know that it is a high burden. It is something that we have wanted to charge in the past and had not had enough to do.”
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