Failures of LawPosted: March 22, 2012
A brief word: I’m no legal scholar, and I invite DUFL readers and contributors with legal backgrounds to weigh in on this post, but it is a sad state of affairs when a law degree is needed to understand or discuss this country’s legislation.
On September 22, 2010, Tyler Clementi, a student at Rutgers University, committed suicide by jumping from the George Washington Bridge. His roommate, Dharun Ravi, was accused of setting up a “viewing party” to spy on Clementi’s intimate encounter with an older gay lover the evening prior. Last Friday, Ravi was found guilty of multiple counts of invasion of privacy, witness tampering, evidence tampering, and bias intimidation. For his homophobic actions, Ravi faces up to 10 years in prison.
On February 26, 2012, George Zimmerman, a crime watch volunteer from Sanford, Florida, confronted, shot, and killed a “suspicious” black male in a hooded sweatshirt in his neighborhood. The victim was a 17-year-old high schooler named Trayvon Martin. Martin was armed with a bottle of ice tea and a bag of Skittles. For his racist actions, Zimmerman cited self-defense and has faced no consequences.
How is it that Ravi faces up to 10 years in prison for cyber-bullying while Zimmerman has avoided arrest altogether for what seems like cold-blooded murder?
Racism seemed too trite an answer, and so I did some research. What I found out about the laws that exist in New Jersey and Florida was quite shocking.
The state of New Jersey has a bias intimidation, or hate crime, law that was adopted in 2001 and amended in 2008. Hate crime legislation is already controversial, since it borders on criminalizing thought or speech. However, in certain cases, it can be useful; a burning cross placed on a lawn, for example, is worse than mere trespassing or damaging private property. New Jersey’s bias intimidation law has been previously used in cases of assault, severe vandalism, and other acts of violence. Ravi’s trial was the first time that it’s been used in an invasion of privacy case.
The language of the statute is as follows:
A person is guilty of the crime of bias intimidation if he commits, attempts to commit, conspires with another to commit, or threatens the immediate commission of an offense specified in chapters 11 through 18 of Title ￼2C￼ of the New Jersey Statutes; N.J.S.2C:33-4; N.J.S.2C:39-3; N.J.S.2C:39-4 or N.J.S.2C:39-5, ￼
(1) ￼with a purpose to intimidate an individual or group of individuals because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
￼(2) ￼knowing that the conduct constituting the offense would cause an individual or group of individuals to be intimidated because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity; or
￼(3) ￼under circumstances that caused any victim of the underlying offense to be intimidated and the victim, considering the manner in which the offense was committed, reasonably believed either that (a) the offense was committed with a purpose to intimidate the victim or any person or entity in whose welfare the victim is interested because of race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity, or (b) the victim or the victim’s property was selected to be the target of the offense because of the victim’s race, color, religion, gender, disability, sexual orientation, gender identity or expression, national origin, or ethnicity.
I bolded a few key words in the statute to highlight the following: during the trial, that Judge Glenn Berman had to define the words “intimidate” and “purpose” for the jurors. After the trial, Judge Berman said the following: “I’ve read the statute and read the statute more times than I can count. I’ve studied it. The statute, to me, is muddled. If I had written it, I would have written it differently. But I didn’t write it. The Legislature did.”
In short, because of “muddled” language, a foolish young man may lose up to ten years of his life.
The state of Florida passed the “Stand Your Ground” law in 2005, the first in the nation. This law is an extension of the Castle Doctrine, which comes from 17th century English common law. What the Castle Doctrine says, essentially, is that you could use deadly force to defend yourself in a public place only after retreating as far as possible; in your home or “castle,” however, you can use deadly force, no retreat necessary. When the Castle Doctrine crossed the pond into America, some courts expanded it to what’s known as the “true man” doctrine: “a true man, who is without fault, is not obliged to fly from an assailant, who by violence or surprise, maliciously seeks to take his life or do him enormous bodily harm.” Now you could use self-defense not just in your home, but “in a place where [you have] a right to be.” The “true man” doctrine actually plays a key role in domestic violence disputes. After all, a woman cannot “retreat” or escape from her home and must use self-defense as a primary recourse.
What Florida’s “Stand Your Ground” law does is to completely bring the “true man” doctrine into the public sphere, saying that retreating is no longer necessary as an option. You could literally shoot first and ask questions later.
Now, as fellow DUFL blogger Mike pointed out, Rep. Dennis Baxley, the prime sponsor of the “Stand Your Ground” law, argues that “there is nothing in the castle doctrine as found in Florida statutes that authenticates or provides for the opportunity to pursue and confront individuals.” Senator Durrell Peadon, who also sponsored the law, said that Zimmerman “has no protection under my law.” Unfortunately, the language of their law doesn’t reflect this:
A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony.
There is no language that says the law does not apply if one person pursues or confronts another, so long as he or she is attacked. Then, any person can use deadly force when “he or she reasonably believes it is necessary.” In a deadly exchange with no witnesses, who attacked first is up to the word of the last one standing. Moreover, the law says that deadly force can be used “to prevent the commission of a forcible felony.” So, based on the letter of the law, Zimmerman is justified in shooting Trayvon Martin if he, Zimmerman, “reasonably believes” that it is necessary to prevent crime. The law essentially legalizes vigilantism.
As one can imagine, the vague language of this law is extremely subjective and has led to multiple instances when shooting someone unarmed has not led to charges; unfortunately, Trayvon Martin isn’t the first. As the New York Times points out, the law is used by gang members, drug dealers, road rages, and drunkards embroiled in bar arguments. It’s a law enforcement nightmare.
So to recap: in New Jersey, we have a judge handcuffed by the “muddled” language of a statute, and in Florida, we have a piece of law whose language literally lets somebody get away with murder. I’m certainly that the two pieces of legislation were passed with the best of intentions. Prejudice and discrimination are anathema to a diverse society, and hate crime legislation seeks to address certain forms of prejudice and discrimination. And laws founded on the Castle Doctrine make sense in certain circumstances, as in the case of legal recourse for battered women.
But well-meaning laws poorly enacted have serious, lethal consequences. Hate crime and anti-bias legislation with vague language neither provides justice for the discriminated nor informs the discriminator’s ignorance. And legal recourses that make sense in one’s home don’t always make sense in public spaces. Once these are made law, however, we are unfortunately bound by them until the laws change, even when the errors in the laws are apparent. Ours has always been a nation more infatuated with procedures than justice. When trapped by our procedures, however, we end up with foolish, irrational outcomes.