What do Dred Scott v Sanford (1856), McClesky v Kemp (1987), FL v Zimmerman (2013) have in common?

Reaction to last night's verdict of not guilty for George Zimmerman was swift.  The group of Martin supporters were subdued and looked like they were in shock.  The New York Times this morning reported demonstrations in 4 California cities.  While detailing the demonstrators' every action, the article did not go into why, 5000 miles away, anyone would demonstrate over this verdict. This verdict is now a part of a long an insidious history of unequal justice for African Americans.  As many asked, does anyone actually believe that if it was Martin who shot Zimmerman and told the same story, that Martin would be acquitted of all charges as well?  That's the problem:  the fact that justice is not blind.

As much as the defense elided it and the prosecution was uncomfortable making the argument, the Trayvon Martin case was about race.  The facts involve a young black teenager, unarmed, walking down the street, who was confronted by Zimmerman, got shot in the altercation, and never made it home.  The case though is really a test of the fairness and consistency of the criminal justice system.  Can you follow and fatally shoot an unarmed black person and face no repercussions at all to your actions?  The answer to that question apparently in this case is, "yes".

The larger problem, and the reason there were demonstrations and will be more outrage by civil rights leaders, is that the verdict of "not guilty" for murdering a black man is a verdict minority communities have had to hear too many times.  While African American men (and increasingly Latinos as well) are over-represented in their contacts with the criminal justice system, and are disproportionately convicted of crimes, the inverse is also true.  The history of the American jury system is riddled with cases in the South and the North of justice for only one race--justice has not been remotely consistent.  Just as innocent blacks were convicted of crimes they did not commit, guilty whites were freed by all white juries. 

For over a century, American juries did not represent a "cross section of the community" and persons could be deselected without explanation from a jury pool based purely on race and sex alone.  Even when the Supreme Court has applied that requirement, socio-economic barriers work to over-include middle class white jurors while under-representing poor and minority jurors.  Factors as mundane as transportation, childcare, and whether you are an hourly wage or salaried worker informally, but systematically, deselect certain types of jurors. 

 

Judicial reforms have concentrated on scrutinizing the methods for selecting jurors but have had a limited effect in closing the racial gap in the criminal justice system.  One reason for this sorry state of affairs is that judges, even Supreme Court justices, do not understand statistical arguments.  In McClesky v Kemp (1986), a Supreme Court case about the racial disparities in the application of the death penalty, McClesky's lawyers made a statistical argument to show that after controlling for a host of variables (including 39 non racial variables), the race of the victim as well as the accused determined the likelihood of whether one would get the death penalty in Georgia. 

David Baldus, the law professor who conducted the statistical study, was able to show that if a black defendant kills a white victim, they are 4.3 percent more likely to get the death penalty than if the race of the victim and defendant were switched.  In a 5-4 split along ideological lines, the Supreme Court determined that the system, with its arbitrary dispensation of the death penalty, did not constitute cruel and unusual punishment.  The judicial system has turned a blind eye to racial disparities even when presented with hard data that something is askew.

But appearances do matter, and not just to the families seeking justice.  When the perception is that the verdict was rendered not by a cross-section of the community, or that the jury that was stacked with predominantly one group, then legitimate questions arise as to the fairness of the process and the legitimacy of the verdict. When these instances keep happening, it dampens the faith of the citizenry in the criminal justice and judicial systems, backbones of our democracy.

But possibly more damaging is the collective symbolic messages of this case, others like it, and the many other permutations of it (including the fact that missing black children get far less media attention than missing white children) send the following message:  black lives are not worth as much as white ones. At Gawker, Cord Jefferson made the following observations about the camps of reaction to the Zimmerman verdict:  

Tonight a Florida man’s acquittal for hunting and killing a black teenager who was armed with only a bag of candy serves as a Rorschach test for the American public. For conservatives, it’s a triumph of permissive gun laws and a victory over the liberal media, which had been unfairly rooting for the dead kid all along. For liberals, it's a tragic and glaring example of the gaps that plague our criminal justice system. For people of color, it’s a vivid reminder that we must always be deferential to white people, or face the very real chance of getting killed.

In the infamous case Dred Scott v Sanford (1856), the highest court in the land put its imprimatur on the belief that African Americans (whether free or slave) were not citizens and had no rights that whites need respect.  Not to suggest that no substantial gains in the cause for racial equality have been made, but every time there is a not guilty verdict rendered by an almost all white jury when a black man is killed, it takes minority communities and their supporters right back to Dred Scott.