In the wake of George Zimmerman's acquittal for killing Trayvon Martin, thousands of Americans from across the country have taken to the streets to decry the latest evidence of the low value assigned to the life of a 17-year-old black boy in the United States.
We do not have firsthand knowledge of the trial proceedings or specific evidence presented to the jury, but news outlets have widely reported that the police botched the initial investigation, the prosecution's forensic expert was incompetent, and an important prosecution witness was not adequately prepared to testify. The state was too squeamish to put the touchy issue of race squarely before the six-woman jury. And the trial judge forbade the prosecution from speaking about racial profiling. Still we are stunned: is there no way to hold Zimmerman accountable for taking the life of a young boy out on a candy run?
At least part of the answer to this question is Florida's "stand your ground" law. This law allows a person who feels threatened to fatally shoot someone even if it is possible to safely avoid the conflict. The law was championed by the National Rifle Association (NRA), which has been working to get similar laws enacted in states across the country.
Bizarrely, it also seems that the subjective fear someone experiences at the sight of a young black man in a hoodie may trump the fear of a violent husband when it comes to reliance on the stand your ground defense, at least in Florida. In 2012, Marissa Alexander, a survivor of domestic violence, was sentenced to 20 years in prison for firing warning shots to deter her abusive husband from beating her. Ms. Alexander was convicted despite the fact that previously she had sought a protective order against her husband, and despite the presence of her sobbing 11-year-old daughter in the courtroom. Ms. Alexander had never been in trouble with the law, and had given birth to her youngest child less than two weeks before this incident. Clearly, she was not justified in standing her ground in her own home while caring for a newborn and another young child.
As John F. Timoney an experienced police chief and commissioner, observed last year: "[people] feel threatened all the time, whether it's from the approach of an aggressive panhandler or squeegee pest or even just walking down a poorly lighted street at night. In tightly congested urban areas, public encounters can be threatening; a look, a physical bump, a leer, someone you think may be following you. This is part of urban life. You learn to navigate threatening settings without resorting to force. Retreating is always the best option."
Black men, people of color, queer people, transgender people, and those living with HIV historically have been perceived as inherently suspicious, dangerous, and threatening. Rather than address the ignorance and misconceptions that inform negative reactions to marginalized groups, we have turned to criminal laws to control these perceived "threats." We are criminalizing people who are disliked and disfavored, at a substantial cost to individuals, families, communities, and the country as a whole. At a time when many people clamor for less government intervention, we carve out an exception for the criminal justice system used to incarcerate and punish "the other."
As for Zimmerman, had he been HIV positive, and rather than shooting someone to death had engaged in protected, consensual sex, he likely would have been found guilty of a felony and sentenced to decades in prison, even in the absence of HIV transmission. With HIV status used as an aggravating factor in criminal cases, it is not surprising that an estimated 1 in 7 persons living with HIV pass through correctional facilities every year.
As a society, we reject the reliable antidotes of education and self-awareness, relying instead on the state to justify our overreactions and unexamined insecurities. More than most countries, we rely on the criminal law as a response to unfounded fears that we hold regarding those who fall outside of the mainstream. The stand your ground defense that justified killing a young black boy, and the HIV criminalization laws that justify making felons of people with HIV, stand as sad examples of this reality.
Catherine Hanssens is the executive director and Iván Espinoza-Madrigal is the legal director of the Center for HIV Law and Policy.