After George Zimmerman’s acquittal for shooting Trayvon Martin, President Obama and Attorney General Eric Holder urged the state of Florida to abandon its “stand your ground” law. If this were just taking advantage of a high-profile case to advance a political agenda, that would be bad enough. But the president’s and attorney general’s demands are inappropriate for a more fundamental reason: the federal government trying to impose its will on states.
The debate over where to draw the line between federal and state authority has been hard-fought from the early days of the republic. But the one area where state authority has gone unchallenged is in the power to define criminal laws. The states are better placed than the federal government to respond to local conditions and their citizens’ immediate concerns regarding public safety.
The overwhelming number of ordinary crimes is prosecuted by the states. The federal government lacks the resources and the manpower to take over any substantial portion of them. When a person is prosecuted in federal court, it’s for a federal offense, such as fraud in national financial markets or terrorism. While the federal government has been encroaching on state responsibility to address local crime, federal prosecution still remains the exception.
This division of power reflects the reality that there is not any one-size-fits-all criminal law. The states can and do adopt different approaches to defining crimes to meet their unique needs and their citizens’ preferences. When an innovation works, other states are free to adopt it.
That is how the “stand your ground” defense quickly spread to the majority of the states — 31, according to law professor Eugene Volokh’s count. “Stand your ground” has long been the default rule for self-defense within the home, and more recent statutes, such as Florida’s, extend this protection to public places. The difference is that traditional self-defense puts a victim of an attacker outside the home at risk of conviction if a jury second-guesses whether retreat might have been possible and, if so, at what risk to the victim. “Stand your ground” shifts the focus back to where many believe it should be: the attacker and the attack.
That’s hardly a radical change, and it raises no concern — for example, that such laws are motivated by racial discrimination or produce racially disparate result — that might justify federal meddling. Indeed, a 2012 analysis by Florida’s Tampa Bay Timesfound that black defendants who asserted a “stand your ground” defense went free 66% of the time, slightly more than white defendants. Moreover, blacks took advantage of the defense at a rate nearly twice their proportion of the state population. If blacks are more likely to be victims of violent crime, it only makes sense that they would disproportionately benefit from a stronger right to self-defense.
So then why all the controversy? Blame those who would make a federal issue of states’ legitimate differences of opinion. A virtue of federalism, apparently lost on the president and attorney general, is that there doesn’t have to be only one right answer.
David B. Rivkin Jr. and Andrew M. Grossman practice law in the Washington office of BakerHostetler.
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