Much has been written and discussed concerning George Zimmerman and the killing of Trayvon Martin.  Not enough has been done, and there is some doubt that much will be done.  Some even argue that nothing should be done.  I believe there is a pressing need not only to continue the conversation, but also for action.  To do this, there needs to be some agreement that there are underlying problems that can and should be addressed.  For most in the black and progressive community, the need for action seems obvious.  But one only need look at the immediate response of Florida legislators, especially Republicans, to doubt if there will be a legislative response, even on Stand Your Ground laws.

While these are critical issues to engage, I want to call your attention to these issues from a different perspective.  I would like the reader to consider how he or she would respond to a set of circumstances.  Imagine you live in a city or state where laws are made by people of a different race, and possibly a different political party.  For those of you who are white, imagine you are in a jurisdiction dominated by blacks or Latinos policymakers.  You may feel that the concerns of whites are given short shrift.  You may even feel, regardless of the legislative intent, that laws enacted for public safety are not well tailored to make you or your community safer.

In fact, there may be a less-than-subtle assumption that the broader public is less safe because of your presence.  Consequently, the police and the community is given new powers to aggressively protect themselves from you.  Now, against that backdrop, there is a killing in your community of a white man, which many from the black and Latino community believe, consciously or implicitly, was dangerous.  In fact, suppose for the sake of argument that most white men were perceived as dangerous, as demonstrated through social science.

Consider further that the judge is also black or Latino, and the jury, which has no whites on it, will look at what happen and apply the laws passed without your input and regardless of your concerns, in this situation.  Would most white people, and especially white conservatives, believe that they would fairly have justice in this thought experiment?

Notice, even if the jury fairly applied the law, it begs the question, is the law itself fair?  Could it be fair in such circumstances?  One could substitute almost any set of groups into the hypothetical, and it would raise serious questions about fairness and democracy.  In our system of laws, one is supposed to be judged by a jury of one’s peers.  The underlying idea is that common experience and shared concerns affords a greater chance for justice than being tried by a judge.  Would white, middle-class suburbanites believe that low-income blacks living in Detroit are their peers in a case where the other party was black?  Our legal system is so concerned with bias that the framers of the Constitution assumed that if two parties were citizens of different states in a legal dispute, it might be difficult, if not impossible, to receive a fair trial in a state court.

For that reason, the Constitution allows such matters to be resolved in a presumably neutral federal court under diversity jurisdiction.   Yet, the prevailing patterns of de facto segregation, which separate communities by race and class across most of our major metropolitan regions, is not accounted for in our justice system.  In fact, our policies, such as Florida’s punitive felon disenfranchisement law, exacerbate it.    It is questionable whether a defendant of one race will ever receive a fair trial when the judge, jury and all of the other actors of another.   What happens to the residents of Seminole County, 30% of whom are black?

We should not be surprised that Americans continue to reside in separate neighborhoods, enroll in different areas, attend different churches, and vote in the South along racial lines, we will continue to have different perspectives.  As long as one perspective is shut out or closed off, we cannot claim that “we the people” have been true to our democracy or to our concept of a fair trial under our Constitution.

Part of this separation is based on a deep and growing fear that continues to reinforce and emanate from deeper societal structures.  If I am afraid or merely unfamiliar with the racial, ethnic or religious ‘other,’ I might already believe that he or she is a threat to my life and my way of life.  Many ‘Stand Your Ground’ laws account for the subjective fears – and individual perception of danger — of the defendant.  From there, it is an easy step to believe the racial or religious ‘other’ is a danger, which Stand Your Ground laws might be used to justify avoidable homicide.

This is not to suggest that the judge or the jury is unfair under the law or malicious. What it does suggest is that the very concept of democracy requires that people who  are governed have a meaningful say in laws that will govern.   This extends to the justice system, and that the requirements of a fair trial demand justice from people who might share your life experience rather than be predisposed to see you as the problem. Long before we knew anything about unconscious, or implicit, bias, the framers of the Constitution understood this basic idea.   The need for meaningful participation in making laws and serving on juries, for both the perception and reality of fairness, were guiding principles in our Constitution.  As we move forward, we should practically embrace those principles.

This blog post was also posted on the Berkeley Blog.

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