The men who killed Ahmaud Arbery were already convicted in state court, and would have spent the rest of their lives in prison as a result. But taxpayers spent thousands of dollars, and hundreds of thousands of dollars worth of attorney and court time, to convict them all over again in federal court, to send a symbolic message. This money could have been spent clearing unsolved cases, or saving lives by boosting the funding of underfunded police departments. But it was wasted on a redundant prosecution instead. The federal convictions won’t increase their punishment at all, since the death penalty wasn’t sought.
Reason Magazine reports:
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.”
