Arbery’s Family Wants Justice. They’re Going About It the Wrong Way.

This week, the federal hate crimes case against the men who murdered Ahmaud Arbery in 2020 began with jury selection. Travis McMichael, his father Gregory, and their neighbor William “Roddie” Bryan were all sentenced to life in prison without parole after being convicted last year of chasing down and murdering Arbery while he went for a run. Even though the outcome of the federal case won’t change their fates, the trial’s stakes are still high. The prosecutors hope to prove that the McMichaels and Bryan were motivated by racial animus in the killing, evidence of which has been reported in the news, but was studiously avoided by prosecutors in the state murder trial.

That vindication, criminal justice experts say, isn’t just important for the family. The federal hate crime case has become a proving ground, testing the criminal justice system’s ability to recognize and address the role racism played in Arbery’s murder. The harms in this case are personal—the Arbery family lost a son—but they are also political. People across the country watched the McMichaels walk free, with the help of the officials tasked with investigating the crime, for months after the murder. Indeed, many have called the murder a modern-day lynching, drawing parallels to an era in which white violence against Black people went largely ignored and unpunished by the state. In this light, a hate crime conviction and appropriate punishment of Bryan and the McMichaels are seen as a corrective to not only the Arbery family’s loss, but also decades of racial violence.

Such a vindication won’t come easy. The family and the federal judge overseeing the hate crime case have already rejected a plea deal that prosecutors struck with the McMichaels, they say after consulting the family’s attorneys. Under the deal, the McMichaels would have confessed to their own racist motives for the murder in exchange for 30 years of confinement in a federal prison. The family objected, arguing that federal prison is the McMichaels’ preferred place of incarceration due to a belief that state prisons in Georgia would offer harsher conditions. At first blush, it’s easy to read the controversy as another example of the justice system again failing Black victims of crime and offering undeserved leniency to killers who are white. But the case is actually much more complex and revealing about the limits and purported aims of the justice system.

For starters, several criminal justice experts pointed out that leaving key decisions, such as the relative harshness of confinement conditions, to grieving family members is not only incredibly fraught, but also has the potential to distort the course of justice. Over the last several decades, crime victims and their families have increasingly played a much larger role in criminal court cases. The victims’ rights movement has worked over the last 30 years to create an ”independent participatory role for crime victims in criminal justice proceedings,” according to the National Crime Victim Law Institute. In 2004, for example, Congress passed the Crime Victims’ Rights Act, which afforded victims and their families the right to confer with the prosecutor and requires the prosecutor to obtain the victims’ views on potential plea deals. These efforts also gave rise to victim impact statements at sentencing hearings, which fueled an appetite for harsh punishments and paved the way for federal mandatory minimum sentences and limited judicial discretion. Harshness in sentencing became a way to soothe the pain of grief-stricken families.

The Arbery family’s desire for harshness or retribution, while understandable, multiple criminal justice experts said, is not supposed to inform a judge’s decision-making, nor is it the ostensible goal of the justice system. “It’s the fact that you’re locked up that’s the punishment. The conditions of confinement are not supposed to be part of the punishment,” said Georgetown law professor and former federal prosecutor Paul Butler. The family may “want the McMichaels and Mr. Bryan to suffer … and I understand that, and I would feel the same way if I were a family member. But that also underscores why it’s not the family members who have the final say in matters related to prosecution.”

With a plea deal off the table, the judge will ultimately decide Bryan and the McMichaels’ sentence, should a jury find them guilty of a hate crime. Though criminal justice experts expressed an understanding of the Arbery family’s desire to address the role hate played in the murder, they say it would not be appropriate for a judge to make a decision about the ultimate place of imprisonment based on the desire to see the killers suffer under the harshest possible conditions.

“You do want to respect the family’s desire for vindication that it was a hate crime. It’s a lot trickier to say that you want to respect the family’s desire that the prison conditions be as harsh as possible,” said Robert Weisberg, co-director of the Stanford Criminal Justice Center and a former consulting attorney for the NAACP Legal Defense Fund and the California Appellate Project on death penalty cases. “That’s a very, very dangerous idea, I think, because relative degree of harshness of the conditions of prison [is] not normally a legitimate basis for a judge in deciding the nature of punishment.”

Part of what makes this case so thorny is the way the country’s long history of racial violence informs the stakes, as well as the family’s desire for justice. Months after Bryan and the McMichaels were sentenced to life in prison, Arbery’s father praised the judge’s decision in an interview with a local news outlet. “I thank God for that judge. He let people know that you will go to jail for the rest of your life when you kill someone because of their race,” Marcus Arbery said. “This isn’t the 1800s anymore. This is 2022. It’s a new day and a new time, and this world isn’t going to tolerate that. He showed that.” Yet the justice system is not designed to ameliorate these historical wrongs. And, as many criminal justice experts pointed out, the purported goals of the justice system are deterrence of future crimes and rehabilitation of those who have erred.

As a result, achieving “racial justice” by sentencing the McMichaels and Bryan to the harshest possible conditions is illusory. “Criminal law isn’t about trying to repair an injury or compensate someone who suffered damages,” Butler noted. “Criminal law and punishment is designed to deter both the defendant and others from committing criminal acts in the future.”

Still, the case does offer an opportunity for progress. Too often, hate crimes against people of color and other minorities go unpunished. As the Washington Post reported last week, “Federal prosecutors declined to prosecute 82 percent of hate-crime suspects investigated from 2005 to 2019, according to a Justice Department report last summer. During that time, the U.S. government secured hate crimes convictions, on average, in just 19 cases per year.” Part of the difficulty is the high burden of proof in hate crime cases. These cases tend to hinge on intention, showing what is going on in someone’s mind while they committed their crime. “It’s not enough to prove that the person is a racist. You also have to prove that the criminal act he’s accused of doing was a product of that racism,” Butler said. “What prosecutors have to prove is in a sense what’s going on in someone’s mind.” Proving that motive beyond a reasonable doubt is challenging, even when there is evidence that the perpetrator is a racist, particularly since even people with deeply racist views in today’s America will deny their own racism, Butler noted. Securing a guilty plea in this hate crimes case, and forcing Arbery’s killers to admit their own racist views, would have shown these kinds of rare convictions are possible and may encourage prosecutors to bring charges in future racially motivated cases. Now it will be up to the hard work of a trial to do that.

But intention aside, hate crimes can be complicated to prosecute for the reasons we saw play out in this case: Once a conviction and maximum punishment have been achieved, from a practical standpoint there tends not to be much more beyond symbolic reasons—which can be incredibly strong, as they are in the case of Arbery’s murder—to go forward with a hate crime prosecution. As in the case of Arbery’s killers, a separate hate crime prosecution can even sometimes be seen to complicate the results of the initial trial. His killers are already sentenced to life in prison. Now, thanks to the federal case, a new argument has erupted over where they will serve their sentences. These tensions only underscore why hate crimes statutes are so rarely used.

What this case makes most clear, Butler notes, is that the hard work of achieving some semblance of racial justice should be the domain of the political branches that make the law and not the judicial ones that enforce it. After Arbery’s murder, the Georgia legislature passed a hate crimes law, and has taken steps to amend the racist citizen’s arrest statute that the McMichaels and Bryan claimed authorized their pursuit of the slain jogger. That very statute is a relic of the country’s racist history. It was based on a law that “was passed to help private white citizens catch runaway enslaved people, so that was a law that desperately needed to be revised,” Butler said. Most states still have versions of these laws on the books, which sets the stage for future tragedy. Preventing another racially motivated killing under the guise of a citizen’s arrest or amending the hate crimes law in order to add an additional censure—and punishment—in cases of racially motivated crimes are legislative efforts, not judicial ones.

While it is easy to sympathize with the Arbery family’s aims, part of the kind of justice they ultimately seek—ensuring that no more Black people are killed under the guise of the law—requires an entirely different campaign. “It’s important that the defendants in the case be brought to justice,” Butler said. “But that’s a separate issue from advancing civil rights or racial justice.”

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