Lately it seems like everyone and their brother has an opinion on the Zimmerman verdict. I’ve certainly said my share around here and over on FaceBook. So it’s not so surprising Dan and Libby Anne used the Zimmerman trial as a kind of springboard into our next </a>Forward Thinking topic. But we’re not only supposed to talk about the most recent case; rather, they prompted us to take a broader view:
I would like us to abstract away from the particular details of this case and ask bloggers to write about the general question, “What sorts of reasoning and priorities should go into self-defense laws so that they can be as ethical as possible?”
Fair enough. Here’s the problem, though: I’m not sure it’s the self defense law as such that’s the problem, either in the Zimmerman case or more generally. Make no mistake, I have my own problems with that particular law and others like it. I believe The New Yorker’s Adam Gopnik has it precisely right when he connects the stand-your-ground laws to the way lethal duels took off in America around the same time they were dying off “There is no invocation of natural law,” he wrote; “the argument isn’t that all men have an inherent right to kill when threatened. The appeal is, rather, to a kind of implicit cultural law: it is not in the American character to retreat. Beneath the surface of the liberal state and the legal rules designed to limit violence and to grant a monopoly on its use to a freely elected government, there is a national character that has to be protected – or, perhaps, invented.”
What can I say? Word.
There’s this idea woven through laws like the stand-your-ground law that there’s something unmanly, even un-American in walking away from a fighting, in letting someone get away with something when you believe they’ve wronged you or your community, or even when you think they could. But I don’t think that’s it at all. True power is the ability to call the police and have them respond rather than getting involved yourself. But I’m afraid I’m channeling Steven Spielberg here:
Getting back to the FT question, I don’t know that this is the kind of thing you could change a law to reflect. It’s not that a better formulation of the law would get at this better conception of what it means to be powerful or secure. But perhaps a cultural change would? To my mind, killing someone in self defense is not a sign of strength so much as of weakness. Granted, it’s much, much better than needing to defend yourself and not having to. But better yet is having the luxury to not get into that kind of situation, being able to call the police when you need to.
Of course that all relies on the idea that there are authorities that can be called upon and trusted, and that is a place we should look for changes. We need to encourage a culture of trusting the cops, which requires that we have cops who deserve that trust. It requires fighting for justice across the board, particularly those programs that lead different communities to distrust the police. In some neighborhoods that will mean ending the Stop and Frisk programs or the NYC’s disastrous policy of spying on Muslims after 9/11 (and the equally disastrous programs where they did the same thing to black radicals a generation ago). It may mean working for some sort of legal status or at least temporary amnesty so victims of a crime can go to the police when they have a problem without fear of being deported. It certainly means reforming our insane “war on drugs” policies, and probably taking a long hard look at mandatory minimums as well.
And we need to move away from talking about gun ownership as a right to fostering a responsible ethos of gun ownership, one that is realistic about how safe guns can make you and the dangers imposed by them. Also, an end to the war on terror, or at least to the mentality that we should be absolutely safe. And to round it out: peace, love, joy, and Christmas 365 days a year. I get that a lot of this is what we in the Tolkien fandom call “when the king returns.” I get we’re never going to get to perfect justice here. But my point is the more imperfect our justice is, the more likely we will have fewer people forced into situations where they must defend themselves. And that lack of a need for self-defense shows more strength and power than being prepared to shoot your fellow citizen ever would be.
On the legal end, I do think the stand-your-ground laws could be (and should be!) fine-tuned. Over at Slate, Daniel Engber argues that the comparisons between George Zimmerman and Marissa Alexander (the black woman who unsuccessfully invoked stand-your-ground to defend herself from her abusive husband) tells us more about Florida’s screwed-up laws than it does about racism in the legal system. And I think he’s on to something. Lax gun laws, mandatory minimums (under FL law you get ten years for brandishing a gun, twenty for shooting it, and twenty-five if the bullet goes into someone, at a minimum, regardless of context) – they combine for some sentences that, when you compare the sentences two people got for the same charge, just don’t look just. At all. But the problem is you have a system with high penalties and not much difference between types of gun crimes (shooting in the air versus a lethal shooting), and also one that makes it hard to convict absent an eye witness. Engber likens in to a lottery, “a bet with low odds but high stakes,” and I have to say I’m hardpressed to disagree.
How can we fix all this? Again, as Engber writes:
These two laws in Florida – regarding self-defense and mandatory sentencing – run exactly counter to the old idea that the certainty of punishment, and not its severity, makes the best deterrent. They may also work in tandem to distort a criminal’s incentives. For a felony shooter, motivation and context are now far less important that the fact of whether she’s convicted, since all convictions carry these enormous penalties. That means a would-be criminal might be less inclined to mitigate an act of violence – by shooting at the wall or aiming at the knee, let’s say – than to mitigate his or her chances of getting caught.
And again, I’m with Engber. This seems like exactly the opposite of what we want. So if I was designing the laws for criminal shooting, including those pertaining to self-defense, I’d look for something that has more of a continuum of punishment, where there was more variation based on the circumstances of why you shot the gun but more certainty that everyone who shot a gun in the wrong way would actually go to jail. I’m just a lowly philosophy doctoral candidate, with no real expertise in the criminal justice system or in the law, for that matter. I don’t know what’s the best way to get there, or even what’s legally permissible. But I’d say getting more certain punishment for crime, and more sentences actually matching up with the wrongness of what a person did, the extenuating circumstances, what other options they had (you know – justice)… well, that seems like a good place to start.
Still, even if we could work the laws in a way that let this happen, I’m not sure that would have satisfied my sense of justice. I think self defense should definitely be part of this whole picture. But even if Zimmerman was justified in shooting Trayvon – even if he had no real choice in that situation – I still think he did something very, very wrong that needs punishing. And he would still have behaved badly even if Trayvon had walked away that night.
Let me try to explain with a story I’ll be telling my ethics students later this week. Jack and Jill are both schizophrenic. At the moment they’re on medication for it, their condition is controlled but with powerful side effects – so powerful they decide to stop taking their pills. It makes Jack sleep sixteen hours a day and drool uncontrollably, and Jill twitches in a way that makes everyone around her treat her like a freak. Most schizophrenics aren’t violent, but Jack and Jill are the exception to that rule: they both know, based on past experience, that when their schizophrenia is in full swing, they’re not able to control themselves and they tend toward violence, but they also decide no one should have to live like that.
So they go off their meds. Jill’s mum sees her and realizes what’s going on, and she insists she start taking the medication again. Jack, on the other hand, isn’t so lucky. Before he runs into anyone who knows him and might intervene, he stabs a little girl who happens to walk past his house. This girl hasn’t done anything wrong and her death is totally pointless – we’re not talking a situation where her death was the only way we could save three other people or some such thing. But at the same time, Jack was completely irrational. There was no way he could have stopped himself, once he was off his meds. So do we blame him for this kid’s murder?
Well, I think we blame him – but not for the murder itself. When he was on his medication, when he was rational, Jack decided to start a chain of events he knew he couldn’t control. He and Jill both decided to trade in their horrible life for whatever consequences came, including gruesome murder of an innocent child in Jack’s case. Jack’s not really responsible for killing the kid, but he is responsible for going off his meds and knowingly creating a dangerous situation where he knew someone might get hurt. But here’s the thing: Jill’s guilty of that, too. The fact that he hurt someone, killed them horribly, is in some sense just horrendously bad luck. We might be more inclined to lock up Jack because his actions actually had bad consequences, and that might make sense – his bad choice had bad consequences, and so it’s now so obvious we can’t just move on from this point – but whatever we do, I think it has to stem from this fact that Jack made a bad choice to go off his pills, not that he couldn’t stop himself from killing that little girl once he was off them.
What does this have to do with the Zimmerman case, or self-defense laws more generally? Everything. Imagine how you’d feel about this case if Zimmerman still initiated the fight, still singled out Trayvon for racist-ish reasons but in this case he actually couldn’t have escaped safely. Imagine you know beyond a shadow of a doubt that Trayvon was assaulting Martin not to keep from being shot, but because he was tired of being followed by “creepy-ass crackers” (to use his phrase), or because he was high on drugs or whatever. Imagine if Trayvon was even threatening his life, and Zimmerman really had no choice but to shoot Trayvon in self-defense. Wouldn’t we still blame him for starting the fight in the first place? Kind of like we might recognize Jack was so out of control of the situation, he wasn’t responsible for stabbing that kid – but he was responsible for setting up a situation where he wouldn’t be able to control what happened. If you’re anything like me, you’ll agree Zimmerman – even if he had to shoot Trayvon to save his life – would still be responsible for setting up a situation where that was his only option. So would anyone in this particular situation. Sometimes the conflict is inevitable, sometimes there’s nothing we could do to avoid it – but in most cases? Not so much.
So getting back to the original question: what would my ideal self-defense law look like? I think I would certainly redesign the law itself, so that it didn’t encourage the kind of legal lottery Engber describes. I’d also recognize that when you must protect yourself with deadly force, you’re facing a choice between all bad possibilities, and the better question than What should I have done in this moment? is, What could I have done before this moment to keep things from getting to this point? I’d also recognize that, just because someone has to act in self-defense, that doesn’t mean she isn’t responsible for something else contributing to the situation. And perhaps there should be laws against that, too. I think that’s the real issue here – not just refining our self-defense laws, but figuring out why people get in the situation where they have to defend themselves, and if they acted recklessly, look at making that illegal.
This may actually be a good way to provide those smaller, more certain punishments Engber mentions: someone could be innocent of murder by reason of self-defense, but still guilty for provoking the situation leading up to that moment. Because, really, even if Zimmerman isn’t guilty of killing Trayvon, even if he had no choice but to fire at tat final moment? It sounds like he still made mistakes. Big ones. Perhaps some of them should even be criminal.
This post is written for the Forward Thinking challenge. I will add a link to other participants when it becomes available.