For generations, tough-on-crime voices have championed harsh sanctions that lead to gross racial disparities at every step of the justice system, while denying Black people the full protection of the law when subjected to violence, especially hate crimes, by private citizens.
The same voices often try to hide how deeply the justice system is connected to slavery, legalized race-based subjugation, and ongoing structural racism.
But over the last several weeks, during the trial of White vigilantes who have been convicted of murdering Ahmaud Arbery—an unarmed Black man hunted down and murdered for doing nothing more than jogging while being Black—that connection has been laid bare for the nation to see.
The convictions of Arbery’s killers provided a momentary sense of relief for many. In this instance, “the system” worked toward the ends of justice.
Yet, the same trial put on full display the system’s fault lines, demonstrating how crime is racialized and race is criminalized. This link is often baked into the law itself.
Racial History of Georgia Citizen’s Arrest Law
At the center of the prosecution of Arbery’s killers was Georgia citizen’s arrest law, which originated during the Civil War era and was not amended until this year, in direct response to his killing. The law previously permitted a “private person”—defined as a White person—to stop someone who committed an offense in their presence or with their immediate knowledge, and to arrest them if they tried to escape.
Although facially race-neutral, the citizen’s arrest law was originally designed to permit White people to hunt and arrest enslaved Black people fleeing bondage. It functioned as a presumption of guilt for Black people and a license for White people to kill with impunity.
But the law’s facial neutrality obscured its link to White supremacy and slavery, thereby ensuring its survival for 160 years. Without this law and others like it, Arbery’s killers might not have felt emboldened to act as vigilantes in the first place; the original investigating prosecutor certainly would not have declined to prosecute them.
Bias at Trial
The start of the trial was similarly tainted by disturbing issues related to race. Of the 12 sitting jurors, there was only one Black juror, in a county where Black people comprise nearly 27% style of the population. The presiding judge “found that there appear[ed] to be intentional discrimination” by the defense in excluding qualified Black jurors, but felt that his hands were tied.
The judge’s reluctant ruling reveals the shortcomings of Batson v. Kentucky, the U.S. Supreme Court precedent that requires that a party show only a non-pretextual, race-neutral reason for striking a juror—accepted reasons that have included a potential juror’s age, occupation, and unemployment in courtrooms around the country. In Arbery’s case, as in Batson, the issue of racism during jury selection was masked by race-neutral explanations.
Throughout the trial, racism continued to lurk, through dog whistle-style assertions by the defense that catered to White identity while disparaging the victim. In pretrial pleadings, defense counsel implied that it had witnesses who would portray Arbery as “violent, aggressive, dangerous, confrontational.”
These witnesses never materialized because they did not exist. Yet, the defense tried repeatedly to conjure up a false image of Arbery as a threatening Black menace. These efforts to manipulate the jury came to a head mid-trial when one defense attorney told the court “we don’t want any more Black pastors coming in here” after the Reverend Al Sharpton came to comfort to the Arbery family.
In his closing argument, one defense attorney argued that “a good neighborhood is always policing itself,” referring to Satilla Shores, where Arbery was killed. This statement recalls the defenses mounted by self-appointed neighborhood watch captain George Zimmerman after he killed Trayvon Martin, and by Kyle Rittenhouse after he claimed that his goal in illegally wielding an assault rifle was to protect someone else’s private property during a Black Lives Matter demonstration.
Defense of White-owned property is a rallying cry that ties these cases together, but one that masks its inherent racism. It is analogous to the rallying cry of White supremacists who fear that they will be replaced by people of color and must therefore defend themselves against change.
Despite these issues, the jury in Arbery’s case reached a just result. But his death will be only a prelude to future tragedies if we do not change the way the criminal justice system currently operates.
Laws Rooted in Racism Must Be Changed
As a nation, we must acknowledge the presence of racism in the system, and realize the only way to untangle the two is to change laws rooted in racist intent and practices that have discriminatory effect. Georgia began that process by revising its citizen’s arrest law in the aftermath of Arbery’s death.
But dozens of states still have citizen’s arrest laws that remain unchanged, guaranteeing that this legacy of slavery persists. At the federal level, Congress failed to pass the George Floyd Justice in Policing Act, despite the outcry from millions demanding police reform. Moreover, the tough-on-crime voices are attempting to reassert themselves through slogans like “re-fund the police.”
Arbery’s case—and the lessons we should learn from it—must not be drowned out by slogans that seek to once again hide the connection between racism and criminal justice. It is time for the justice system to look itself in the mirror and make deep and lasting changes. Otherwise, history is doomed to repeat itself.
This column does not necessarily reflect the opinion of The Bureau of National Affairs, Inc. or its owners.
Damon T. Hewitt is the president and executive director of the Lawyers’ Committee for Civil Rights Under Law. Hewitt has more than 20 years of civil rights litigation and policy experience, including prior leadership roles in the nonprofit, philanthropic, and public sectors. Formerly, he was executive vice president at the Lawyers’ Committee.
Arthur Ago is the director of the Criminal Justice Project at the Lawyers’ Committee. Before coming to the Lawyers’ Committee, he spent close to two decades at the Public Defender Service for the District of Columbia (PDS) representing indigent children and adults facing serious delinquency and felony criminal charges in Washington, D.C.