Wednesday, May 23, 2018
Opinion

Second Zimmerman prosecution isn't the answer

Immediately after a Florida jury acquitted George Zimmerman, civil rights organizations demanded that the U.S. Department of Justice prosecute him for killing Trayvon Martin. While many people think Zimmerman is guilty of a serious crime, that campaign is misguided. In fact, a second prosecution would do nothing to solve systemic problems. Only substantial legal reform can address pervasive racial injustice within the American legal system.

First, there are problems with a federal case. Although the constitutional prohibition of "double jeopardy" would not apply in this setting (Florida and the United States are "separate sovereigns"), multiple prosecutions of individuals for the same behavior stretch the bounds of justice. Governments can use multiple prosecutions to harass individuals, force them to enter plea agreements in weak cases, make them spend extreme amounts of money on legal fees and subject them to long periods of pretrial detention.

Though federal prosecutions can correct gross miscarriages of justice in state courts, it is not clear that Zimmerman's acquittal rises to such a level. Even if a defendant commits a crime, prosecutors face a difficult burden proving "guilt beyond a reasonable doubt." Because of this exacting standard, guilty individuals sometimes go free. The acquittal of a "guilty" person, without more, simply does not represent the type of severe injustice that warrants a second prosecution. This is a natural part of a legal system that forces the government to make a strong case before depriving defendants of liberty.

Also, it is unclear what charges federal prosecutors could pursue against Zimmerman. Typically, federal civil rights prosecutions target either state actions or private behavior that deprives individuals of important federal rights, like voting. Though federal law prohibits murders on the basis of race, religion or sexual orientation, proving that Zimmerman killed Martin because of his race would be nearly impossible in a criminal trial, due to the high standard of proof and the lack of explicit evidence of racist motivation.

Martin has become a symbol of black male racial vulnerability, and there are legitimate reasons for treating him as such. If Martin's death and Zimmerman's acquittal are symptoms of a malfunctioning criminal justice system, the response to these events must involve more than a second prosecution of Zimmerman. Rather, as several recent studies demonstrate, the need for reform in Florida is quite broad.

In June, the American Civil Liberties Union released a study showing that black Floridians are 4.2 times more likely than whites to be arrested for marijuana possession, although possession is virtually even across racial groups. Florida's racial disparity exceeds the national average.

Other studies document the disparate treatment of marginalized youth in Florida's juvenile justice system. This year, the Orlando Sentinel studied 14,000 reported arrests of Florida juveniles, finding that black and disabled students experience disproportionately high rates of arrest. Similarly, in 2010, the Florida Advisory Committee to the U.S. Commission on Civil Rights completed a study of the Duval County public schools. The study found that "African-American students receive disproportionately more office discipline referrals, out-of-school suspensions, placements into alternative settings, expulsions and arrests." These practices mark youths for life, depriving them of educational and economic opportunity and contributing to mass incarceration of people of color.

A recent federal investigation of the Miami Police Department demonstrates how the DOJ, if asked, could use its authority to produce lasting and substantive improvements to law enforcement in the state. On July 9, the DOJ released the results of a two-year investigation of the Miami Police Department that started after Miami police shot and killed seven black men within eight months in 2011. The investigation found that the Miami police engage in a pattern of excessive and unconstitutional force.

Following standard practice, the DOJ and the Miami Police Department likely will now meet and compile a list of extensive forms. Next, a federal judge will order the city of Miami to implement the reforms. If the city violates the court's order, the court could hold the responsible officials in contempt, which could subject them to monetary penalties or incarceration.

These are the types of substantive reforms that civil rights activists should demand in honor of Trayvon Martin. Focusing narrowly on Zimmerman obscures the institutionalized racism that makes boys and girls like Martin vulnerable to private and state-sponsored violence. Hopefully, concerned organizations and individuals will marshal their passions regarding Martin and use this moment to accomplish meaningful and lasting reform in Florida.

Darren Hutchinson teaches Constitutional Law, Civil Rights, Critical Race Theory, Law and Social Change, and Remedies at the University of Florida Levin College of Law. He received a B.A. from the University of Pennsylvania and a J.D. from Yale Law School. He is the author of the blog "Dissenting Justice." He wrote this exclusively for the Tampa Bay Times.

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