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January 25, 2014

"Murder, Minority Victims, and Mercy"

The title of this post is the title of this interesting looking paper that just appears on SSRN and is authored by Aya Gruber.  Here is the abstract:

Should the jury have acquitted George Zimmerman of murder? Should enraged husbands receive a pass for killing their cheating wives? Should the law treat a homosexual advance as adequate provocation for killing? Criminal law scholars generally answer these questions with a resounding “no.”  Theorists argue that criminal laws should not reflect bigoted perceptions of African Americans, women, and gays by permitting judges and jurors to treat those who kill racial and gender minorities with undue mercy.  According to this view, murder defenses like provocation should be restricted to ensure that those who kill minority victims receive the harshest sanctions available.  Equality is thus achieved by ratcheting up punishment.

There is a similar bias in assessment of the death penalty, where those who kill racial minorities are treated more leniently than those who kill whites and are often spared execution.  But the typical liberal response here is to call for abolition rather than more frequent executions.  Equality is thus achieved by ratcheting down punishment.

This article asserts that the divergence between the accepted scholarly positions on the provocation defense and capital punishment can be explained by provocation critics’ choice to concentrate on spectacular individual instances of leniency toward those who kill gender minorities and death penalty theorists’ tendency to view the entire institution of capital punishment as racist and retrograde.  The article then provides the institutional sketch of noncapital murder law currently missing from provocation analysis by discussing sentencing practices, the demographic composition of murder defendants, and the provocation defense’s potential role as a safety valve.  It concludes that inserting institutional analysis into the critical assessment of provocation might undermine the prevailing scholarly dogma supporting pro-prosecution reform.

January 25, 2014 at 08:10 AM | Permalink


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I am far from a George Zimmerman fan. I don't think armed guys should follow strangers.

That said, the evidence (which may or may not be the complete picture, but is what a jury has to go on) showed that Martin attacked and had Zimmerman on the ground.

Anyone that thinks that he should have been convicted of murder on that evidence has un-American views.

Posted by: federalist | Jan 25, 2014 9:09:44 AM

"Should the jury have acquitted George Zimmerman of murder? ... Criminal law scholars generally answer these questions with a resounding “no.”

Really? Citation please. My sense was that many criminal law theorists thought that, at most, Zimmerman should have been convicted of manslaughter.

Posted by: theman | Jan 25, 2014 9:42:32 AM

No evidence sufficient to support all of the element of the crimes charged against Z.

Dogma is not a word that figures into legal thought and discussion. Even if you have a dog that contributes to your thought process. Go to Turleyblog on that one.

Posted by: Liberty1st | Jan 25, 2014 8:39:49 PM

Like the other commenters, I have grave doubts that "criminal law scholars generally" thought Zimmerman should have been convicted. There is not a wisp of evidence known to me to support this claim (notwithstanding that some anti-white bigots in academia would have liked to see a conviction, sure).

Florida law puts the burden on the state to prove the absence of self-defense once that defense is asserted. It was obvious, even to generally pro-prosecution types like me, that the state utterly failed to carry this burden. Thus Zimmerman could not properly have been convicted.

How tripe like this article passes for scholarship is a mystery.

Posted by: Bill Otis | Jan 25, 2014 10:12:22 PM

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