A step to be taken only with great caution.

New York Times


The relationship between federal and state prosecutions – raised now in the debate surrounding the Zimmerman verdict – is, to be put it mildly, complex. When we think about the issue in connection with street crime, we have one reaction. When we think about it in connection with federal civil rights or federal hate crimes, we have another.

Despite Florida's particular law on self defense, many of the problems with the case would be replicated at the federal level.

Many practitioners, scholars and judges – I among them – have railed about the federalization of ordinary crime. Onerous federal penalties for street crime has contributed to our extraordinary incarceration rates, and in particular, to the racial imbalance in our prisons. And we are appropriately aghast when a federal prosecution follows a state one for drug offense, which, although it happens rarely, raises fundamental questions of fairness even if it is not, strictly speaking double jeopardy. (Crimes against one sovereign, a state, are seen as different crimes than those against another sovereign, the federal government.) Federal criminal statutes dealing with street crime were enacted not because Massachusetts or New York or Kansas or Texas weren’t prosecuting offenders. They were enacted to supplement their efforts.

Federal civil rights statutes had a different genesis. They were enacted not to supplement state prosecutions, but because of the failure of the states to take seriously the civil rights of their citizens. The federal government was stepping in to fill a gap that widened in post civil war America, when African Americans were victimized and state law enforcement stood silent. The federal government was doing what the states couldn’t or wouldn’t do.

Hate crime statutes were enacted as one kind of federal civil rights enforcement, creating enhanced penalties for certain acts. Hate crime statutes (like many civil rights statutes) now exist at both the state and federal levels. Indeed, the language of Florida’s hate crimes statute is virtually identical to the federal. There were 6,222 federal hate crime incidents, 47 percent were racially motivated (according to the FBI Uniform Crime Report). Nationally, Florida had 129 hate crimes in 2011, 43 percent were racially motivated, a number that, according to the Florida Attorney General’s office has been steadily falling.

But all of this is an abstraction: The question is whether the federal government should step in following this verdict at this time. As The New York Times reported, there were problems with this state prosecution, problems unquestionably related to state politics – even racial politics – and especially, its self defense laws, which seemed to enable deadly force at a point far earlier than other states or the common law. The prosecution was delayed; witnesses were not interviewed immediately; evidence gathering was delayed. And the state trial took place before a six person jury – a jury whose size necessarily meant it would be less representative.

The problem is that many of these issues will be replicated at the federal level — what was Zimmerman’s motive, and what he reasonably believed the law privileged him to do. And the federal jury – drawn from a wider, and largely suburban area – will be even less diverse—as many federal juries are. The federal government should look carefully at the issues. Another verdict ratifying Zimmerman’s conduct – if that should happen – would help no one.