Today, the federal hate crime was convicted of three white men for the murder of Ahmaud Albery (a 25-year-old African jogger) after they chased him with pickup trucks in a suburb near Brunswick. A jury found that Gregory McMichael was the one who started the chase, Travis McMichael his son who shot Arbery and William Bryan were the two other men involved in the chase. Bryan joined the chase with his pickup truck and pursued Arbery because of his “race” and “color.”
A violation of 18 USC 225, is punishable with life imprisonment. However, since the three accused are all currently in prison serving life sentences at state for Arbery’s murder, federal convictions won’t affect their punishment. Travis McMichael and Gregory are ineligible for parole. Bryan will not be eligible for parole until his 80s, as long as he’s still living. According to a former federal prosecutor, the purpose of the second trial was “to send the message that Justice Department won’t tolerate this kind of racist hatred.” The Washington Post.
In evidence presented by the prosecution, the defense argued that defendants expressed racist views in months and years prior to Arbery’s death. The defense did not dispute the evidence and argued that they were motivated by suspicions that Arbery was involved in criminal activity. Arbery had visited the house in question repeatedly.
It was evident that Travis McMichael, et. al. were the suspects. Arbery wouldn’t have been considered a criminal suspect had he not been white. If that is true, the defendants responded to Arbery in the same way “because” he was black. However, their opinions were vital to the prosecution’s case. Therefore it is also true that they were convicted because of their stupid beliefs. They were condemned as bigots, but they have been convicted and punished as murderers.
This second, symbolic prosecution, according to the Supreme Court did not result in double jeopardy. Federal and state offenses, which are defined by different sovereigns, were not considered “the same offense”. Even though they often impose extra punishments based on Constitutionally Protected Speech, the Court also ruled that hate crime prosecutions are compatible with the First Amendment.
Even if these arguments were convincing, one might wonder where Congress got the power to federalize certain state crimes like assault and murder. 18 USC 245, which is concerned with interference in the use public facilities, such as that on which Arbery was running, is based on the 13th Amendment which empowers Congress to tackle “the relics of slavery,” including badges and instances of slavery. 18 USC 249 is a new statute, which covers bodily injuries inflicted because of the victim’s “actual and perceived race, color religion or national origin”. It was also authorized by the 13th Amendment.
Arbery’s racist killers are historically related to slavery racism, but neither the statutes nor the crime require a victim or perpetrator to be white. Lemrick Nelson was a black man that fatally attacked Yankel Rosenbaum (a Hasidic Jew) during 1991 Crown Heights Riot. He was convicted of violating 18 USC 245. Tiffany Harris (a black woman, who was accused of slapping three Jewish ladies in the same neighbourhood in 2020 was charged under 18 USC 249. It is difficult to see the link between “the relics badges and incidents slavery” in cases such as these.
Nelson appealed against his federal conviction, contending (among others) that Congress exceeded its power under the 13th Amendment. The U.S. Court of Appeals 2nd Circuit noted in a 2002 decision that the Amendment’s ban on slavery and involuntary service is race neutral. It stated that the term “race” in Thirteenth Amendment law is an art term whose meaning cannot be limited by modern usage. The 2nd Circuit observed that Jews were often regarded as distinct races when the 13th Amendment became effective.
William Carter (Case Western Reserve Law Professor) noted in 2007 that this analysis has many problems. Carter noted that Jews in current society are not considered to be separate races, as the court recognized. The court was required to examine whether or not the Thirteenth Amendment protected all racial group.
Carter noted, “Race-based violence does not constitute literal slavery or involuntary servitude.” Because Rosenbaum was not alleged to have been subject to involuntary or literal slavery by his assailants, the court needed to determine whether such violence could be considered to be a “badge or incidental to slavery” he said. “The Amendment’s ban on actual enslavement does not automatically mean that it prohibits the lingering effects slavery.
It seems a bit absurd to think that an amendment prohibiting slavery would allow federal prosecutions of black people for assaulting Jews. Counterintuitive is the idea of repeatedly prosecuting the same person for the same offense, which is contrary to the Fifth Amendment’s ban against double jeopardy. Likewise dubious: 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. Although today’s verdict brings back all of these questions, it doesn’t solve them.