Monday, August 6, 2012

George Zimmerman and the Right to Violence (Part Two)

This is the second part of a series. Part one can be found here. A final, complete version with citations will be made available on SSRN.

The True Man    

      At the time of America’s founding, its justice system adopted the “duty to retreat”, a longstanding doctrine in the English common law. This duty to retreat represented a desire to keep violence from escalating. Noted British jurist Sir William Blackstone recognized that the law could, at its best, serve as a kind of moral ideal. With respect to violence, then, it could not equivocate. On retreat, Blackstone wrote, “[A man using violence] in his own defense, should have retreated as far as he conveniently or safely can, to avoid the violence of the assault, before he turns upon his assailant . . . from a real tenderness of shedding his brother's blood.”    

      In the nineteenth century, the “True Man” doctrine emerged in American common law in stark contrast to our inherited duty to retreat. A true man never backs down or flees from a fight. The American justice system began chiseling away at the duty to retreat in the nineteenth century, at first in courts in the west and then more broadly across the nation. Historians like Richard Maxwell Brown and Garrett Epps have detailed how the right to stand one’s ground solidified into precedent by the turn of the twentieth century. In 1895, the Supreme Court took up the cause of the true man in Beard v. United States. The Court held that "[i]f the accused did not provoke the assault and had at the time reasonable grounds to believe, and in good faith believed that the deceased intended to take his life, or do him great bodily harm, he was not obliged to retreat . . . ."

      In subsequent decisions, the “Castle Doctrine,” which was a time-honored exception to the duty to retreat in defense of one’s own home, expanded into a new regime, in which those castle walls extended potentially to the very edges of the universe.

      The introduction of stand your ground statutes did not represent a sea change in American law, despite the great deal of attention such statutes receive, particularly in light of the Zimmerman case. In many states without such laws, the common law true man doctrine already excuses those who refuse to retreat. The innovation in stand your ground laws consists in their deterrent effect against prosecutors. Such laws require that prosecutors prove beyond a reasonable doubt that the defendant did not act in self-defense. By handcuffing the handcuffers, the statutes threaten to fill our streets with killers. Predictably, the successful use of the justifiable homicide defense has skyrocketed in Florida.

      Ultimately, because such laws excuse those who meet violence with the same, they essentially emasculate those who shy away. Any man who flees from violence has only his cowardice to blame. They can no longer claim that but for the law they would have stood their ground. Lawmakers and citizens who take up the cause of codifying the violent norms of masculinity have blood on their hands.    


David Bernstein said...

"In the six years after the law was passed [in Florida], 228 people were killed by citizens acting in self-defense-- about one justified homicide every 10 days." Or, about 40 per year. Meanwhile, there have been around seven thousand murders in Florida, or about 1,100 per year. After spiking up in 2006, the rate has since gone down to under 1,000. Similarly, Florida has had over 100,000 violent crimes per annum, but recently they've declined. Showing: (1) that "stand your ground" cases pale in comparison to MUCH more numerous murders and violence in general; and (2) it's at least POSSIBLE that the Stand Your Ground Law has contributed to a decline in murder and violent crime--even a marginal contribution would easily make up for any additional violence COMMITTED by "Stand Your Ground" defendants. But using broaders statistics would interfere with the narritive, no?

David Bernstein said...

But what do you make of the fact that murders and violent crime more generally have been on a significant downswing in Florida since "Stand Your Ground" came into effect? Surely, the significant decline in crimes of violence including murder dwarfs the few (40 or so a year) Stand Your Ground cases, most of which, as you acknowledge, would have come out the same way before, just with more trauma to the defendant.

Josh Stein said...

Thanks for commenting! I think you raise an interesting point. Violence across the board is down and SYG laws may have some impact on this (although I am somewhat skeptical, I'd be open to whatever data could show this). But, this doesn't change the fact that it's easier as a result of these laws to get away with violence by claiming self-defense.