University of Miami Law Review
Aya Gruber, Race to Incarcerate: Punitive Impulse and the Bid to Repeal Stand Your Ground, 68 U. Miami L. Rev. 961 (2014), available at https://scholar.law.colorado.edu/faculty-articles/71.
Stand-your-ground laws have come to symbolize, especially for many in the center-to-left, the intense racial injustice of the modern American criminal system. The idea now ingrained in the minds of many racial justice-seekers is that only by narrowing the definition of self-defense (and thereby generally strengthening murder law) can we ensure Trayvon Martin's death was not in vain. However, when the story of Martin's killing first appeared on the national stage, the conversation was not primarily about the overly lenient nature of Florida's self-defense law. It was a multi-faceted dialogue about neighborhood warriors, criminal racial profiling, and especially the racially discriminatory nature of police and prosecutorial discretion. After nearly two years of talking about the case, however, concerns over Florida state actors' racially biased application of the law have virtually evaporated in the face of the throng of arguments that stand your ground is inherently poor criminal policy. The nature of the Zimmerman conversation is now about how stand your ground has exonerated thugs, drug dealers, and vicious killers all over the racial spectrum and the law's correlation with increased homicides. This Article explores why many progressives decided to focus their advocacy efforts away from clear issues of inequality and toward legal reform to make it more difficult for future defendants to plead self-defense. It maintains that at least part of the explanation is a punitive impulse deeply entrenched in American psyche that leads even left-leaning racial justice proponents occasionally to hastily embrace proposals that augment the very police and prosecutorial power they otherwise criticize. It accordingly cautions progressives to be wary of remedying discrimination through programs that bypass nonpunitive social, cultural and economic restructurings in favor of selective carceral management of the few private (non-police) individuals that can be characterized as transgressing the social order.
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