Guest commentary: Stand-your-ground laws ignore racial bias realities

When a wave of frustration and outrage about the killing of Trayvon Martin crashed across North America, there is no doubt that countless Michigan residents were caught up in the tide of a public debate that began to ebb only after George Zimmerman, the admitted killer of the unarmed 17-year-old, was arrested. As opinions flew, some condemned Florida for its stand-your-ground law, unaware that Michigan has its own law that contains many of the features that have been the source of so much controversy in Florida.

The pertinent provision of Florida’s self-defense law provides that a person who is attacked can stand his or her ground and respond with deadly force “if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another, or to prevent the commission of a forcible felony.”

Michigan’s law likewise provides that, under proper circumstances, there is no duty to retreat, and individuals may use deadly force anywhere they have a right to be if they “honestly and reasonably” believe it is necessary to prevent imminent death, great bodily injury or sexual assault to self or others.

What may or may not have been considered during the adoption of these laws is the fact that whether a person’s violent response to an attack was “honestly and reasonably” necessary can be purely a matter of opinion. The subjectivity of these laws poses certain hazards, given the undeniable impact of race on the criminal justice system.

Somehow, decisions that are made every day by police, prosecutors, judges and others about the guilt or innocence of people of African descent have resulted in their overincarceration relative to their representation in the general population. Specifically, the Sentencing Project reported that while in 2007 there were 412 white prisoners per 100,000 white Michigan residents, there were 2,262 black prisoners for every 100,000 black residents. Nationally, about 13% of the population is of African descent, but approximately 40% of U.S. prisoners are black.

Because of the criminal justice system’s racial reality, many have asked whether police would have allowed Trayvon Martin to go home if he had managed to subdue and kill George Zimmerman. Will a white suburban woman who kills after having been accosted by a mugger in a mall parking lot be treated in precisely the same way as a black youth with a criminal record who is forced to justifiably defend against an unprovoked drive-by shooting in Detroit?

These laws present the potential for white suspects to receive the benefit of the doubt, and for black suspects to become subject to racial presumptions of black criminality that are deeply rooted in stereotypes that were opportunistically created generations ago for purposes of economic advantage and the control of an oppressed population.

There are still other questions begging for answers. Will those inclined toward vigilante justice feel more confident that the law will protect them when they inject themselves into threatening situations? Will police become confused as they sort through legal questions that normally don’t come up during routine arrests?

To the extent that these and other questions were not considered in the past, the Trayvon Martin case is the wake-up call to consider them now. The entire country has been concerned about events in Florida, but because Michigan has its own stand-your-ground law, the concerns strike a lot closer to home.

Mark P. Fancher is the staff attorney for the ACLU of Michigan Racial Justice Project.