Six months after George Zimmerman was acquitted for shooting and killing 17-year-old Trayvon Martin, a trial involving similar circumstances concluded. This time the defendant, Michael Dunn, was convicted on three counts of attempted murder for shooting into a car occupied by four Black teenagers. Jurors could not agree on the most serious charge of first-degree murder, which requires establishing a premeditated intent to kill. Since the shots killed Jordan Davis after Dunn told Davis and the other teenagers to turn down the radio in their car, since Dunn remained in the parking lot for several minutes after the argument occurred, and since Dunn failed to call 911 and left the scene once his passenger returned, both a murder charge and an attempted murder charge were filed. At trial, Dunn claimed he saw a gun in the teenagers’ car and felt threatened, invoking the stand your ground law to justify deadly force. No gun was found, and testimony by the three surviving teenagers, and other witnesses, undermined Dunn’s claim of feeling threatened.
While an attempted murder conviction related to the three surviving teenagers seems appropriate, the jury’s failure to convict on the murder charge is perplexing. This failure raises long held concerns that race continues to infect perceptions by some jurors, resulting in decisions conveying the message that Black life is not equal to White life.
While the prosecutor has indicated she will seek a retrial on the first-degree murder charge, it is important to recognize that racial inequality in the administration of justice today is an unfortunate reality. America is not post-racial.
While the causes of inequality are more complex than they were under the discriminatory criminal laws of the Jim Crow Era, inequity through racial profiling, prosecutorial discretion, and disparate sentencing remains.
Death penalty cases reveal attorneys general seek capital punishment at much higher rates when the victim is White. White federal defendants are more likely to have death sentences reduced to life through plea-bargaining. Almost 80 percent of persons on death row have been convicted of crimes against White victims, despite the fact that Blacks are more likely to be victims of homicide.
How can one explain disparate sentencing in the cases of Tim Carter and Richard Thomas without pointing to race? Tim Carter and Richard Thomas were arrested, in separate incidents, three months apart, in 2004, in nearly the same Florida location.
Police found one rock of cocaine on Carter, who is White, and a crack pipe with cocaine residue on Thomas, who is Black. Both men claimed drug addictions.
Neither had prior felony arrests or convictions, and both potentially faced five years in prison. Carter had his prosecution withheld, and the judge sent him to drug rehabilitation. Thomas was prosecuted, convicted and sent to prison. The only other apparent difference was race.
The statistics on New York City’s stop-and-frisk practices, where Blacks and Latinos make up 50 percent of the population but 83 percent of the stops, are a result of America’s long, and recent, history of inequality. Of the over 4 million stops during the last decade, only 6 percent resulted in further action, of which 2 percent involved weapons violations. Stop-and-frisk allows police wide discretion to detain minorities who have demonstrated little (if any) indication of wrongdoing.
We must not ignore the role race continues to play. Race continues to be significant in creating suspicion of crime. Fear of Black teenagers is accepted as normal. In some cases, it appears murder is an acceptable response.
While many may look at Dunn’s potential 60-year sentence as adequate justice, the underlying message of the failure to convict on the first-degree murder charge reaffirms notions of racial hierarchy present in the criminal justice system since slavery.
In 1855, a Black slave woman named Celia killed her White owner, Robert Newsom, after he had repeatedly raped her for several years. Celia was convicted of murder and hanged. Her defense of justification, based on resisting an attempted rape, was rejected by the Missouri trial court because she was a slave.
Four years earlier, in Virginia, a slave owner had been convicted of second-degree murder for killing his slave, Sam, after whipping and torturing him. While punishing a slave owner for killing his slave was rare, the sentence of five years imprisonment is revealing. The inconsequential sentence for such a brutal crime indicates how little value was placed on Sam’s humanity.
The disparate sentencing treatment between Black and White defendants in 1855 continues to be reflected today. Although White Americans use marijuana at roughly the same rate as Blacks, African Americans are four times more likely to be arrested on charges of marijuana possession. White defendants in stand your ground states such as Florida, where self-defense laws do not require retreat when one feels threatened, are four times more likely to be acquitted when the victim is Black than when the victim is White, evidencing that Black life is not equally valued within our criminal justice system.
F. Michael Higginbotham, a professor of law at the University of Baltimore, is the author of Ghosts of Jim Crow: Ending Racism in Post Racial America.