As I write this, the travails of Trayvon Martin, the 17-year-old boy shot by a self-appointed neighborhood watch captain, George Zimmerman, are taking on new colors. It may or may not turn out that Trayvon gave George sufficient reason to use his gun in self-defense. Be that as it may, tragedies like this often provide an opportunity to examine related issues. With a hat tip to MSNBC’s Chris Hayes and HBO’s Bill Maher, I’d like to look at three of them.
A Bad Law
A look at Florida’s so-called Stand Your Ground statute reveals it, at least to my laymen’s eye as very bad legislation. First, the law is overly broad. According to Chapter 776 of the Florida Crimes statute, a person may stand their ground and use lethal 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.” (Emphasis mine.) Notice that lethal force can be used not only in defense of self, but in defense of another. But it goes even further to prevent commission of a forcible felony. So what exactly is a forcible felony? According to Chapter 776, “Forcible felony.—“Forcible felony” means treason; murder; manslaughter; sexual battery; carjacking; home-invasion robbery; robbery; burglary; arson; kidnapping; aggravated assault; aggravated battery; aggravated stalking; aircraft piracy; unlawful throwing, placing, or discharging of a destructive device or bomb; and any other felony which involves the use or threat of physical force or violence against any individual. ” (Again, emphasis mine.) Some of these crimes are not necessarily life threatening yet the statute gives a bystander who has a right to be where he is, the added right to use lethal force to prevent these crimes.
The Stand Your Ground law has its foundation in the “Castle law”, the common law notion that a man’s home is his castle and he has a right to defend it. However in most cases a simple claim of self-defense will be accepted in a home break-in. The Stand Your Ground law extends this self-defense claim to public places and even when you yourself are not the one being threatened.
Beyond its breadth, which I think is excessive, there is also the problem of police being given the right to grant immunity from prosecution, on the spot, to anyone with a legitimate Stand Your Ground defense. However, as law professor Micheal Mannheimer points out, how can the Stand Your Ground defense even be properly evaluated without the legal mechanisms to evaluate it, i.e. arrest and trial? Mannheimer writes:
So what is truly distinctive about Florida’s “Stand Your Ground” law? It is this: while self-defense conventionally is just that — a defense, to be raised at trial — self-defense under the Florida law acts as an immunity from prosecution or even arrest. Section 776.032 of the Florida Statutes provides that a person who uses deadly force in self-defense “is immune from criminal prosecution.” This odd provision means that a person who uses deadly force in self-defense cannot be tried, even though the highly fact-intensive question of whether the person acted in self-defense is usually hashed out at trial. The law thus creates a paradox: the State must make a highly complex factual determination before being permitted to avail itself of the forum necessary to make such a determination. [Emphasis mine.]
In short, the Florida statute is bad law.
ALEC: How a Bad Law Goes Viral
Until this past week, I had never heard of the American Legislative Exchange Council (ALEC). Just based on the name, I was actually impressed. What a great idea! A group of legislators from across the country sharing legislative ideas in order to spread best of breed solutions. Unfortunately ALEC has a dark side that undermines my rosy picture. ALEC is composed not only of legislators from across the country but also business interests including the Koch brothers, the tobacco industry and the NRA to name a few. The Council leans heavily conservative. ALECExposed.org goes into great detail on the workings of this council and its dangers. The council drafts “model legislation” which is then taken back to the States by member legislators. The legislation is presented as original by the legislator (despite its ALEC origin) and is voted on. The Stand Your Ground law has spread across the country in part because of the efforts of ALEC. ALECExposed.org details the nefarious origins of Stand Your Ground here. The amount of NRA influence into the law is disturbing to say the least.
On this snapshot from the ALEC site, the Council brags about its success rate in introducing and passing legislation across the country. The so-called “Castle law” based on the ALEC model spread to Maine, North Dakota and Tennessee in 2007 alone. The troubling aspect to ALEC is that instead of lobbyists going to the various state legislatures to influence law, legislators essentially go to a gathering with lobbyists and then bring the ideas back with them as their own. In this way, bad legislation can go viral without any demand from the electorate and no obvious track back to the corporate influence involved.
The Redundancy of Hate Crime Designation
One of the issues being tossed around in the Trayvon Martin case is whether his shooter was caught on tape using a racial epithet, and if so, does this point to a hate crime. As a liberal, I always took it for granted that special designation of hate crimes was a good thing. The goal, as I saw it was to punish folks for wrongful attitudes that lead to violence and by example shape the thought process of others. This seemed to me a noble approach. The topic got discussed on HBO’s “Real Time with Bill Maher” last Friday night and for the first time I found myself reevaluating my position.
The truth is actions speak louder than thoughts or words. A murder victim is no less dead if the murderer bore him no ill will because of his race, gender or sexual preference. When we start talking hate crimes, we’re really talking mind control. The last time I looked, it was legal to hate people for any reason whatsoever. It is also illegal to murder someone in most cases (exceptions being typically self-defense). Why the two have to be mixed in deciding upon punishment no longer makes sense to me.
Another way to look at it is this. In most murders (I use the word generically, not in its strict legal sense), the murderer does not like the victim. Exceptions include “mercy killing” which supposedly puts a loved one out of misery, or a contract killing, where the perpetrator is doing it strictly for the money and has no ill will for the victim. But in most cases, particularly at the moment of the act, a murderer either dislikes or hates the victim. So in many cases, murder by definition is a hate crime. The reason WHY the murderer hates his victim is irrelevant except perhaps in some sort of legal defense (e.g. the murderer had suffered abuse from the victim in the past). Hence labeling a crime a hate crime borders on redundant.
The civil rights movement has proven beyond a shadow of a doubt that it is very hard to change the way people think but we can change what they can or cannot do. Hate crime penalties attempt in vain to control thought. We’re better off simply controlling actions.