Race to Incarcerate: Punitive Impulse and the Bid to Repeal Stand Your Ground

BY AYA GRUBER, 68 U. Miami L. Rev. 961 (2014).

Introduction: Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The lesson of the George Zimmerman trial saga is clear: Stand-your-ground laws, which remove from self-defense law the requirement to retreat before using force, must be repealed. Stand your ground came under fire shortly after the Sanford Police Department’s decision to release Zimmerman without charges, and opponents of the law ramped up their efforts in the wake of Zimmerman’s acquittal. There have been several recent state-level challenges to the laws, some more successful than others. Congress as even stepped in, convening hearings on the wisdom of continued retention of such laws and taking emotional witness testimony from Trayvon Martin’s mother and other slain victims’ family members. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon’s death was not in vain. Indeed, this notion follows a familiar pattern in American penal culture. Publicity of tragic killings of innocent youths at the hands of deviant criminals (or perceived criminals) often sparks calls for greater severity in the criminal law. The Zimmerman case is nevertheless somewhat unusual given political conservatives’ support for the criminal defendant and liberals’ push for tough prosecution. Conservatives typically tend to embrace tough-on-crime responses to high-profile criminal cases while liberals are often more cognizant about the human, social, and economic costs of ratcheting-up punishment. In this case, however, the political roles are reversed, with conservatives backing a robust murder defense and progressives, including racial justice scholars, supporting vigorous law enforcement and prosecution.

Today, it is nearly impossible to talk about Trayvon Martin’s killing without discussing the desirability of stand-your-ground laws. However, when the story first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida’s self-defense law. It was a multi-faceted dialogue about neighborhood warriors, racial profiling, and especially the racially discriminatory nature of police and prosecutorial discretion.9 At that early stage, Martin’s parents and their attorneys emphasized, not that the police merely followed an unjust law, but that a police force with a racially fraught history chose not to arrest, despite having valid legal grounds to do so. The question arising most frequently in the immediate wake of the shooting was: “If the races were reversed, would police have made an arrest?”11 After nearly two years of talking about stand your ground and numerous nascent studies of the law, this question has been buried if not answered in the negative. Concerns over Florida police and prosecutors’ racially biased application of the law have virtually evaporated in the face of the throng of arguments and evidence showing that stand your ground is inherently poor criminal policy.

The nature of the Zimmerman conversation has thus fundamentally changed. It is now about how stand your ground has exonerated thugs, drug dealers, and vicious killers all over the racial spectrum and how the law correlates with an uptick in homicide rates. Under this rubric, Sanford Police Chief Jim Lee and prosecutor Angela Corey are off the hook—they merely followed a misguided law that forced them to treat Zimmerman, and other culpable murderers, leniently. But this new preoccupation with black letter leniency hides one of the most important points about the case. Florida’s self-defense regime, like all criminal law regimes, invested Lee and Corey with discretion—discretion they arguably exercised in a racialized manner. Whatever the fate of the stand-your-ground provision, police discretion to arrest (or decline to arrest) and prosecutorial discretion to prosecute (or decline to prosecute) are destined to remain. It is thus possible that repealing stand your ground will increase Florida murder convictions generally, but leave untouched, or possibly even exacerbate, racial disparities. In any case, the racial disparity question has been all but forgotten in the rush of arguments that stand your ground is too lenient on criminals and encourages violence. While debates continue to rage in statehouses over the fate of self-defense law, the racial outrage generated by the case has been relegated to a prospective celebrity boxing match between Zimmerman and troubled rapper DMX.

This Article explores how radical concerns over racial stereotyping, fortressed communities, and discriminatory policing and prosecution morphed into the old-hat, hackneyed set of retributive and utilitarian arguments that lenient self-defense laws underpunish offenders and increase crime. The relentless preoccupation with stand your ground is all the more amazing in light of evidence that police, prosecutor, and jury discretion ultimately contributed more to the verdict than stand your ground. So why did many progressives decide to focus their advocacy efforts away from clear issues of inequality and toward legal reform to make it more difficult for future defendants to plead self-defense? The answer is undoubtedly complex and multifaceted. Perhaps it was happenstance. The media seized on stand your ground because it sounds provocative and audiences responded. It also might be that progressives targeted stand your ground because of the law’s close connection to the conservative gun lobby and the significance of the gun control debate at the time. Nevertheless, racial equality has not historically been a principal ground for gun control, and yet stand-your-ground laws are currently a racial lightning rod. This Article asserts that at least part of the explanation of some progressives’ emphasis on repealing stand your ground involves a punitive impulse, deeply entrenched in the American psyche, that leads even left-leaning racial justice proponents occasionally to hastily embrace proposals that augment the very police and prosecutorial power they otherwise criticize.

The punitive impulse is a component of a late twentieth-century American penal eidos that gives criminal prosecution a high rank-order among possible methods of addressing pressing social problems. Prevailing conventional punitive ideology views top-down policing as the solution to, not cause of, societal violence. It leads policymakers and advocates to bypass nonpunitive social, cultural, and economic restructurings in favor of selective carceral management of the few private (non-police) individuals that can be characterized as transgressing the social order. The long-term ascendency of this ideology has left a distinctive mark in the form of a punitive impulse—a pre-political, almost unconscious correlation of social harm (in this case, the racial injustice of Trayvon Martin’s death) with the need for greater or more certain criminal punishment of the individual(s) most easily connected to the injustice (in this case, George Zimmerman and future Zimmermans). The punitive impulse triggers an instinctive reaction to harm that naturalizes increased criminal enforcement as a solution of first resort. The impulse accordingly operates to check the usual progressive inclination to regard criminal sanctions as a last resort to be chosen only after careful distributive analysis. Thus, the evidence that the impulse is at work in progressive analysis of the Zimmerman case is not the fact that some progressives ultimately condemned stand your ground, but in many progressives’ precipitous rush to repeal stand your ground to the exclusion of emphasizing more radical, non-authoritarian, egalitarian, and culture-changing measures.

In making the case that a punitive impulse influenced, at least in part, certain progressives to focus on stand your ground, the Article will address several aspects of the Zimmerman case. Part I will trace the origin of the public stand-your-ground discussion in order to shed light on the continued emphasis on the doctrine, despite evidence that the law may have played a very small, if any, causal role in determining the verdict. Part II will examine several cultural and legal predicates of the shooting and the not-guilty verdict, aside from the stand-your-ground law, which have and should continue to give racial justice scholars pause, but receive little current attention. Part III will analyze whether stand-your-ground is an appropriate locus of racial symbolism by investigating the law’s actual racial effects. Finally, Part IV will discuss the concept of a punitive impulse, including its origins, its operation, and the implications for progressive theorizing and advocacy. Full Article

Recommended Citation: Aya Gruber, Race to Incarcerate: Punitive Impulse and the Bid to Repeal Stand Your Ground,  68 U. Miami L. Rev. 961 (2014).

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