What will Attorney General Eric Holder do?
Shortly after being sworn in as the nation’s top law enforcement officer, Holder had this to say about the status of race relations in the United States: “Though this nation has proudly thought of itself as an ethnic melting pot, in things racial we have always been and continue to be, in too many ways, essentially a nation of cowards.”
We remain, Mr. Holder noted, “socially segregated.”
The color line, the boundary separating the world according to race, is evident in reaction to the killing of Trayvon Martin.
Zimmerman supporters contend he was justified in shooting. He was on patrol in his gated community, providing private security. When he spotted a suspicious looking young man in the neighborhood, he inquired. Things got out of hand, somehow. Zimmerman’s lawyers contend that he was attacked, and that he shot in self-defense, fearing for his life as Martin slammed his head into the concrete.
On this narrative, Zimmerman was a protector. He was out alone in the dark of night. He was lawfully armed. He acted, and then was attacked. He defended himself.
But there is another narrative.
This one puts a young black kid in a gated community. Martin was wearing a hoodie, sauntering through the neighborhood, looking out of place. A man with a gun followed him, asking questions. Martin was being hassled for no reason at all — at least no reason that we can talk about in this nation of cowards.
On this narrative, Martin is a victim of racial profiling.
Does anyone really doubt that things would have turned out differently in this case if Trayvon Martin were white? If he were wearing a blazer, rather than a hoodie? If he thanked Zimmerman for his concern rather than asking why he was being hassled?
Trayvon Martin was a victim of racial profiling, and that explains the passionate disagreement about the verdict in this case. On one side of the color line stand those suspicious of dark strangers loping through their neighborhoods. On the other side are young men of color, often stigmatized, often stopped and questioned, for no other reason than the color of their skin. One side of the line is largely white; the other side is largely black.
And so it goes some 400 years after we began to import African slaves onto this soil. We freed the slaves, of course, but silent chains bind us still.
“No justice, no peace,” those outraged by Zimmerman’s acquittal chant. Attorney General Holder is implored to take action. But Holder is already backpedaling. Proof of a federal hate crime would be difficult, he notes. The government would have to prove that Zimmerman killed Martin out of racial animus.
In other words, if it’s too hard to do, don’t try. Holder’s commitment to abolishing racism isn’t even skin deep.
Nothing but will prevents the Justice Department from bringing charges against Zimmerman. Certainly not the prohibition against double jeopardy.
The Fifth Amendment to the United States Constitution prohibits prosecution of a person twice for the same crime. We learn that in high school. But here’s the part you weren’t taught: It is no violation of double jeopardy for the federal government to charge you with a crime, even after you have been acquitted by a state jury. Why is that? The double jeopardy clause bars successive prosecutions by the same government: the state and federal governments are separate sovereigns.
I know how crazy this sounds. It offends a basic sense of justice. Isn’t this existential double jeopardy? The answer is no, according to the law. Recall what happened after the police officers who assaulted Rodney King were acquitted in a California state court? The same defendants were prosecuted in a federal court, and convicted. Call it one of the vagaries of federalism.
And closer to home, consider the Avon case of Edward Burke. After a state court judge placed him on probation for the crime of possession of child pornography, the federal government charged him with the federal version of that offense. This time, Burke wasn’t so lucky. A federal judge tossed him into prison.
Federal law offers remedies when important issues are at stake.
Just last year, the Justice Department won a conviction against some Amish elders under the federal hate crimes statute. What did the elders do? They used force to trim the beards of co-religionists in a dispute about church doctrine. Somehow dead black men hunted down on city streets seems a whole lot more serious a problem than clean-shaven Amish men. At least I suspect those on the dark side of the color line believe that.
The federal hate crimes statute requires the government to prove that a defendant caused death or serious physical injury to another by use of an instrument that moved in interstate commerce. In the Amish case, the offending instrument was a shaver; in the Martin case, it was a gun. The government must then prove that the defendant had a conscious objective — a specific intent, the law calls it — to cause the death or injury on account of race. (In the Amish case, religion was the triggering source of animus.)
It is quite possible that Zimmerman stopped Martin on account of his race but killed him out of sheer vanilla ineptitude. (“What’s the scruffy looking kid with the pants around his rear end doing in my piece of paradise? Followed by: “Good golly, Miss Molly. What have I started?”) A jury should make that call.
The issue of racial animus was not squarely before the Florida jury. A federal prosecution would put the issue of race, and profiling, front and center.
I am no fan of the federal government, so encouraging it to prosecute rubs me the wrong way. But some things bother me more than the feds. Things like racism that never dies. I hope Eric Holder is similarly bothered.