ZIMMERMAN JULY 16, 2013
The acquittal of George Zimmerman, who shot and killed unarmed black teenager Trayvon Martin, has led many to indict the jury that delivered the verdict as racists. But because of Florida’s lax laws on self-defense and problems with the prosecution’s case, the verdict was probably justified. The real injustice is that what Zimmerman did was lawful, and the real racial issue here is that thousands of black people are in prison for far less serious offenses.
For many African Americans, the Zimmerman acquittal seems to fit a familiar pattern established after Reconstruction when racist mobs hunted and killed black men in retaliation from offenses real and invented, and white families brought picnic lunches to watch a lynching. In the rare instance that one of these crimes was prosecuted, the jury invariably acquitted. Today such overt racism is rare. The tough criminal laws that jail blacks at six times the rate of whites are, we’re told, necessary to keep all of us safe. Black communities that disproportionately bear the brunt of tough criminal law enforcement ought to enjoy at least an equal share of its protections.
But Zimmerman’s acquittal raises the concern that black victims of crime don’t count, and studies back up that concern. For instance, an important study of death penalty convictions found that a case involving a white murder victim was about four times more likely to result in a death sentence than one where victim was black. And a study by the Tampa Bay Times found that “defendants claiming ‘stand your ground’ are more likely to prevail if the victim is black”—73 percent were acquitted as opposed to 59 percent of those who killed a white person. So for many, Zimmerman’s acquittal will serve as further evidence that the criminal justice system is rigged to protect whites and punish blacks.
Zimmerman’s acquittal might be the product of a racially biased jury, but in a sense individual racism is beside the point. It’s not at all clear that a color-blind jury would have reached a different conclusion. There were no witnesses to the events that led to the shooting, so no one to directly refute Zimmerman’s version. Police mishandled crucial evidence, giving the defense an opening to discredit it. A very polished and credible forensics expert backed up Zimmerman’s account, while the prosecution’s expert seemed befuddled and uncertain. And, perhaps most important of all, Florida law is extremely lenient with respect to the use of deadly force in self-defense. In many states, deadly force is justified only if the shooter could not retreat and avoid the confrontation, but in Florida, there is no duty to retreat. All of this multiplied the possible scenarios that would justify shooting a teenager armed with a bag a candy and a can of iced tea.
The laws that effectively endorsed Zimmerman’s decision to act as an un-deputized police officer and led the jury to exonerate him were race neutral: Vigilante justice is a menace to everyone. But it is especially menacing to minority racial groups who are often stereotyped as criminals. Civil rights activists routinely complain of police brutality, often with justification, but at least police departments use psychological screening to weed out conspicuous racists, paranoids, and sociopaths, and the officers who make the cut are trained to defuse confrontations. By contrast, Zimmerman was an edgy basket case with a gun who had called the police 46 times in about eight years. Zimmerman was legally entitled to patrol his neighborhood with a gun because getting a concealed weapons license is Florida is easy: More than 900,000 people are licensed to carry concealed weapons there. And Florida’s stand your ground law all but endorses vigilantism, allowing private citizens to take the law into their own hands rather than call the police. None of these laws are racially discriminatory, but because racism is still prevalent in our society, it’s likely that the vigilantism they inspire disproportionately harms blacks.
The presumption of innocence means that the law should err on the side of acquittal, reflecting the great English jurist William Blackstone’s dictum that “it is better than ten guilty persons escape than that one innocent suffer.” But if it’s really that hard to convict, why are so many black people in prison? The answer is that most criminal defendants don’t enjoy the presumption of innocence. In fact most never see the inside of a courtroom—only the inside of a prison cell. In fact, well over 90 percent of criminal cases in both federal and state courts end with the defendant pleading guilty without a trial. To get rid of an overload of indictments and to improve their conviction rates, prosecutors pressure defendants to take plea deals with the threat of much more serious charges at trial. Overworked public defenders or private attorneys assigned to indigent defendants also have an incentive to get their clients to cop a plea. Plus, for many people unable to post bail, their first plea deal is for “time served” awaiting trial: Pleading guilty to a minor offense and getting out of jail right away seems better than staying locked up for months waiting for one’s day in court. But since the conviction is often the basis for parole supervision, it can become the first of many: Any small mistake, like missing an appointment with a parole officer, is the basis for arrest and prosecution. The sad fact is that the vaunted right to trial by jury and presumption of innocence are so rare that for most of the accused, they’re irrelevant.
Blacks live disproportionately in neighborhoods where conventional jobs are few, crime is prevalent, and the shadowy grey market is the largest employer—places where it’s all too easy to get mixed up in the criminal justice system and all too hard to get disentangled from it. That’s why one in nine young black men are behind bars. Trayvon Martin was one of the other ones, a kid who had avoided a run-in with the law. Then he had a run in with George Zimmerman. That’s why the Zimmerman acquittal looks like a racial justice issue, even if the jury that acquitted him doesn’t contain a single racist.
Richard Thompson Ford is Professor of Law at Stanford Law School and author of Rights Gone Wrong: How Law Corrupts the Struggle for Equality and The Race Card: How Bluffing About Bias Make Race Relations Worse.