The verdict in the Trayvon Martin killing seems unjust for sure. George Zimmerman, a 28-year-old neighborhood monitor, chased after the teenage, unarmed Martin one night in February 2012, then shot him dead in a scuffle. Should Zimmerman have been convicted? The case against him turned out pretty weak: With no witness to the crime and a set of clues that weren’t inconsistent with the defendant’s story of what happened, legal experts say the jury had good reason to acquit. Yet a simple thought experiment makes the outrage more distinct. What would have happened if the two men’s roles (or races) had been reversed? Would a black kid’s story of self-defense have been as convincing to the jury? Maybe Zimmerman should walk, but then so should all the nonwhite men who are put away for something less.
To support this theory of the Martin verdict, angry observes have been tweeting links to an AP story from May 2012, describing how a middle-class black woman, Marissa Alexander, was sent to jail for 20 years after firing a “warning shot” in a confrontation with her abusive husband at their home in Jacksonville. “When the defense says, What would have happened if George Zimmerman was black, this is the answer,” said MSNBC’s Melissa Harris-Perry. “She shot a ceiling and she got 20 years.”
That’s not quite right. Alexander wasn’t singled out for being black, or she wasn’t only singled out for being black. The same article that described her case cites an example of a white man, Orville Lee Wollard, who suffered a similar fate. (He shot a gun inside his house, allegedly to scare off his daughter’s boyfriend.) Looked at side by side, Alexander’s case and Zimmerman’s reveal more than racial bias in the courtroom—though surely that exists. They expose a tragic weirdness in Florida’s approach to gun violence. The swamp of gun laws in the state makes it extra-hard to find a person guilty in a shooting, since there are such broad provisions for self-defense. But when a shooter is convicted, the same set of rules ensures he’s really up a creek. “Use a gun and your [sic] done,” the government says. That makes a trial for these sorts of crimes like playing the lottery: It’s a bet with low odds but high stakes.
How does this play out? In Zimmerman’s case, the self-defense laws worked in his favor. In Florida you’re allowed to kill someone if it’s reasonable to believe that by doing so you’ll stave off serious bodily harm to yourself or someone else. This still applies even if you’re the one who “provoke[d]” the use of force, so long as you’ve exhausted “every reasonable means to escape.” To top it off, the prosecution in a murder case has to prove, beyond a reasonable doubt, that none of these protections for the defendant should apply. Since Zimmerman killed the only other person who could have said what happened, the jury found him innocent.
Alexander tried to make a self-defense argument as well, hoping to exploit the same leniency in the law. The evidence against her was more extensive, though, if not quite damning. She may have had the chance to leave the house—there was disagreement over whether the door was jammed—and, in spite of her purported fear of death, she returned to the scene of the crime a few months later and fought with her husband once again; he came out of that with a black eye. Also, there were three eyewitnesses to the crime: Alexander’s husband and his children, two boys ages 9 and 13. So she was convicted, and according to Florida’s minimum sentencing law for gun-related crimes—passed in 1999 and referred to the as the “10-20-Life Provision”—anyone who fires a gun in the commission of a certain class of felonies must receive at least 20 years in prison. (If you point a gun but don’t fire it, you get 10 years; if you fire a gun and hurt someone, you get 25 to life.)
These two laws in Florida—regarding self-defense and mandatory sentencing—run exactly counter to the old idea that the certainty of punishment, and not its severity, makes the best deterrent. They may also work in tandem to distort a criminal’s incentives. For a felony shooter, motivation and context are now far less important than the fact of whether she’s convicted, since all convictions carry these enormous penalties. That means a would-be criminal might be less inclined to mitigate an act of violence—by shooting at the wall or aiming at the knee, let’s say—than to mitigate his or her chances of getting caught.
Seen from that perspective, Alexander didn’t suffer from the color of her skin (though, again, that may well have been a factor for the jury). Rather, her “mistake” was in the fact that she left an eyewitness to testify against her. That gave the prosecution grist for challenging her claim to self-defense—and once she was convicted, it wouldn’t do her any good that she merely fired off a “warning shot.” Meanwhile, if Zimmerman had shot at Trayvon Martin and missed—deliberately or not—he could be in jail right now, serving 20 years.
Florida’s gun possession laws—more permissive than most—only serve to make the situation more explosive. The state allows for carrying your gun to work, stowing it inside your car, and taking it on public transportation. There’s no requirement for firearm registration, and gun owners are explicitly protected against discrimination. It’s like the government has set up a game of high-stakes poker, and then invited everyone to play.
Worse, the prosecution can use a rule like 10-20-Life to go all in on every hand. Even if a defendant thinks she’s innocent—or thinks she’s got a chance to walk on grounds of self-defense—she’ll be tempted to toss her hand and plead down to a lesser charge. The government offered Marissa Alexander a chance to go to jail for three years instead of 20, but she refused to fold. She thought she might escape conviction altogether, like Zimmerman. Instead, she busted out. The jury deliberated for 12 minutes, just one-eightieth the time it took their counterparts last week. Alexander was found guilty of aggravated assault with a deadly weapon. She’s due out in 2032.
This dangerous mix of laws is not unique to Florida. The combination of a robust right to self-defense and harsh penalties for violence done with firearms has been a focus of the National Rifle Association (though the gun rights group may now be shifting its priorities). The government should leave good, law-abiding gunmen to themselves, says the NRA, and throw the book at thugs and ruffians who abuse the law. That approach to justice has some horrid outcomes. It leaves defendants unusually exposed to racial bias, and can sometimes make an act of murder seem like the safest bet.
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