The Verdict Against Ahmaud Arbery's Killers Highlights the Problems With Federal Hate Crime Statutes
Such laws, which allow redundant prosecutions based on defendants' bigoted beliefs, supposedly are authorized by the amendment that banned slavery.
The three white men who killed Ahmaud Arbery, a 25-year-old black jogger, after chasing him in pickup trucks through a suburban neighborhood near Brunswick, Georgia, were convicted today of federal "hate crimes." The jury concluded that Gregory McMichael, who initiated the chase; his son, Travis McMichael, who killed Arbery with a shotgun; and William Bryan, who joined the chase in his own pickup truck, had pursued and assaulted Arbery "because of" his "race and color."
That violation of 18 USC 245 is punishable by life in prison. But since all three defendants are already serving life sentences in state prison for murdering Arbery, the federal convictions won't have any practical effect on their punishment. Gregory and Travis McMichael are not eligible for parole, and Bryan won't be eligible until his early 80s, assuming he is still alive. The point of this second trial was to "send the message that the Justice Department won't tolerate this type of racist hatred," as a former federal prosecutor put it in an interview with The Washington Post.
The prosecution presented evidence that the defendants had repeatedly expressed racist sentiments in the months and years before they killed Arbery. Without contradicting that evidence, the defense argued that the three men were motivated not by racism but by their suspicion that Arbery, who had repeatedly visited a house under construction in the neighborhood, was engaged in criminal activity.
The jury evidently surmised that Travis McMichael et al. would not have viewed Arbery as a criminal suspect if he had been white. Assuming that's true, they responded to him the way they did "because of" his race. But since the opinions they had expressed were crucial to the prosecution's case, it is equally true that the defendants were convicted "because of" their benighted beliefs. Condemning them as bigots was the whole point of this exercise, since they had already been condemned (and punished) as murderers.
According to the Supreme Court, this second, symbolic prosecution did not amount to double jeopardy, because the state and federal crimes, defined by two different "sovereigns," are not "the same offense." The Court also has held that hate crime prosecutions, although they frequently impose additional punishment based on constitutionally protected speech, are consistent with the First Amendment.
Even if you buy both of those arguments, you may wonder where Congress gets the authority to federalize state crimes such as assault and murder. The main constitutional rationale for 18 USC 245, which focuses on interference with the use of public facilities (such as the street on which Arbery was jogging), is that the 13th Amendment empowered Congress to address "the relics, badges and incidents of slavery." The 13th Amendment also supposedly authorizes 18 USC 249, a more recent statute that covers bodily injury inflicted "because of" the victim's "actual or perceived race, color, religion, or national origin."
While the racism expressed by Arbery's killers is historically related to the racism underlying slavery, neither statute requires a white perpetrator or a black victim. Lemrick Nelson, a black man who fatally stabbed Yankel Rosenbaum, a Hasidic Jew, during the 1991 Crown Heights riot, was convicted under 18 USC 245. Tiffany Harris, a black woman who was arrested in 2020 for slapping three Jewish women in the same Brooklyn neighborhood where Nelson killed Rosenbaum, was charged with violating 18 USC 249. In cases like these, the connection to "the relics, badges and incidents of slavery" is hard to perceive even if you squint.
Nelson challenged his federal conviction, arguing (among other things) that Congress had exceeded its authority under the 13th Amendment. In a 2002 decision rejecting Nelson's appeal, the U.S. Court of Appeals for the 2nd Circuit noted that the amendment's prohibition of slavery and involuntary servitude is race-neutral. It added that "'race' as used in Thirteenth Amendment jurisprudence is a term of art, whose meaning is not limited by today's usage." When the 13th Amendment was ratified, the 2nd Circuit noted, Jews were commonly viewed as a distinct race.
As Case Western Reserve law professor William Carter noted in a 2007 law review article, there are several problems with this analysis. "As the court acknowledged, Jews, in contemporary society, are not thought to be a separate race," Carter wrote. "Accordingly, even if the Thirteenth Amendment protects all racial groups, the court had to determine whether the Thirteenth Amendment protects non-racial classes."
Carter also noted that "race-based violence is not literal slavery or involuntary servitude." Since "there was no allegation that Rosenbaum's assailants intended to subject him to literal enslavement or involuntary servitude, the court had to analyze whether religiously motivated violence against a Jewish person amounted to a badge or incident of slavery," he wrote. "The fact that the Amendment's prohibition of actual enslavement is race-neutral does not necessarily mean that its prohibition of the lingering effects of slavery is also race-neutral."
The notion that an amendment banning slavery authorizes the federal prosecution of black people who assault Jews seems more than a little far-fetched. Also counterintuitive: the idea that repeatedly prosecuting people for the same conduct is consistent with the Fifth Amendment's ban on double jeopardy. Reasonable people likewise might question the assumption that the Justice Department should use the criminal justice system to make a moral statement about people's beliefs, as opposed to punishing them for their criminal conduct—especially when state courts have already accomplished the latter objective. Today's verdict reminds us of all these riddles, but it certainly does not solve them.