Why you shouldn’t be so quick to applaud the hate-crime convictions of Ahmaud Arbery’s killers
Travis McMichael, who fatally shot Arbery; his father, Gregory McMichael, who set off the chase; and William Bryan, who followed in his vehicle, are now notorious criminals. It’s certainly understandable, at a time of racial polarization, that many Americans celebrated the men’s federal conviction on hate-crimes charges.
But it’s precisely in climates of political passion that government is most likely to justify policies that corrode rights in the long run. This insight was until recently second nature to American liberals, as in their criticism of President George W. Bush’s “war on terror.” Successive prosecutions for the same act — like government searches of journalists or restrictions on peaceful assembly — might sometimes be necessary, but their wider use deserves close scrutiny in a free society no matter how odious the government’s targets.
As Supreme Court Justice Neil M. Gorsuch wrote in a 2019 opinion: “When governments may unleash all their might in multiple prosecutions against an individual, exhausting themselves only when those who hold the reins of power are content with the result,” the most unpopular defendants will be among the first targets — but there is “nothing to stop them from being the last.”
Gorsuch’s opinion, on the Fifth Amendment’s double-jeopardy clause, was a dissent. The Supreme Court allows successive prosecutions by federal and state governments for the same crime — and the federal charges against the Arbery defendants differ from the state murder charges because they required prosecutors to prove racial bias.
Yet the Justice Department has for decades recognized that prosecuting people for the same acts multiple times, even when it has the constitutional authority, risks distorting the justice system. And while Justice won’t admit it, the department appears to have carved out a new exception to its dual-prosecution policy in this case.
Named for a 1960 Supreme Court opinion, the “Petite policy” says federal prosecutors should not charge people for acts already prosecuted by a state unless the state outcome left “a substantial federal interest … demonstrably unvindicated.” That narrow exception could apply, the policy says, if a state acquittal was the result of misconduct, or where a penalty was “manifestly inadequate.”
For example, after Los Angeles police officers who beat Rodney King were acquitted by a California jury in 1992, the federal government successfully prosecuted some of them under a federal civil rights statute. Those laws were passed in part to protect Black Americans against violence that might be tolerated by local authorities or juries.
But in the Arbery case, the jury did convict. So what interest, exactly, is vindicated by a successive prosecution? A Justice Department representative said in an email that there is a “substantial federal interest in obtaining a conviction against the three defendants for a hate crime,” adding that the state convictions “do not contain a hate-crime element.”
Is it the department’s position that the Petite policy’s presumption against dual prosecutions no longer applies in instances where the Justice Department can charge defendants under a civil rights statute? It certainly appears so — see also the successive federal conviction of former Minneapolis police officer Derek Chauvin after he was sentenced to 22.5 years in state prison for the murder of George Floyd.
This apparent reinterpretation of the Petite policy has taken place without a public explanation or debate. Instead of reserving dual prosecutions for cases where a state penalty was insufficient, the Justice Department now asserts an interest in seeking convictions for purely symbolic purposes. That matters: An important constraint on government power has been removed.
President Biden, campaigning for his federal elections bill, last month accused Georgia of implementing “Jim Crow 2.0,” and a high-profile federal hate-crimes conviction in the state could be seen as supporting his argument. That shows how symbolic prosecutions can blur the line between politics and the law. The Justice Department’s highly irregular handling of this case suggests that the administration’s political interests played a role.
Those who support the rollback of the Petite policy in this instance should not be surprised when a future administration does so to publicize other classes of crime that align with its political interests. For example, a Republican administration could bring federal charges against individuals already vigorously prosecuted and sentenced at the state level for acts of violence or property destruction during 2020 Black Lives Matter protests.
Righteous outrage over Arbery’s murder shouldn’t obscure these risks. Georgia already imposed maximum penalties on those responsible. The federal government saw no downside in proceeding with a double prosecution against reviled defendants already under life sentences, confident the effort would be cheered in the media. But amid much self-congratulation, it has chipped away at a meaningful norm intended to buttress constitutional rights, and the implications will extend beyond this case.
