Systemic Racism and International Response
Racism is prevalent around the globe. African Americans and people belonging to other minority races are discriminated against regularly. One such instance is of George Floyd. In May 2020, we witnessed the killing of Floyd, a black man, by a white former Minneapolis police officer ‘Derek Chauvin’. The video of Chauvin’s knee fatally choking Floyd went viral, leading to the Black Lives Matter movement. The movement addressed the widespread racism in the United States, especially in the Police ranks, where suspicion is found not because of suspicious acts of the culprit but because of their skin colour. Popularly known as the George Floyd riots, the movement sought the immediate prosecution and conviction of Chauvin for attacking Floyd owing to his African American race. The cause was so grave, that the protests were not limited to the US, but spread across the globe, becoming a worldwide movement. The struggle of the oppressed African-Americans was felt internationally, since the killing not only violated domestic criminal law, but also opposed the principles enshrined in International Human Rights Law; specifically Article 5 of the UDHR, which provides that “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”, as well as Article 2 of the UDHR, which provides for, inter alia, the right to freedom and equality regardless of one’s race.
As the world mourns the one-year anniversary of Floyd’s death, we note that the acts of racial violence against Floyd are not isolated. The US has continually witnessed racial minorities being subjected to ill-treatment, which violates every tenet of human rights. The recent outbreak of the coronavirus has resulted in mass violence against the Asian population of the US. 2020 recorded as many as 3800 anti-Asian cases, which ranged from harassment to extreme violence resulting in the death of Asian-Americans. The extent of the rising hate crimes was so severe, that it led to the US enacting a law specific for such acts of racial violence. On May 20, President Biden gave his assent to the ‘COVID-19 Hate Crimes Act’ bill, which seeks speedy redressal of hate crime cases and establishment of specialized hate crime units, stating that “Silence is Complicity”.
A year subsequent to Floyd’s death, the much anticipated trial culminated into a guilty verdict on all three counts, namely second-degree unintentional murder, third-degree murder, and second-degree manslaughter. The court’s verdict was widely celebrated and lauded as a triumph over the evil practice of racism. The verdict also gained the support of the United Nations, as Michelle Bachelet, the UN High Commissioner for Human Rights issued a public statement on 21 April, commending the favourable outcome. Calling it a “momentous verdict”, Bachelet termed the killing of Floyd as a gross human rights violation. The UN High Human Rights Chief welcomed the verdict by stating that it was one step further in the struggle for equality of all races.
Prosecution’s Plea and Aggravating Factors
Following the verdict, the state of Minnesota asked the court to grant a higher sentence to Chauvin than what is normally granted in similar convictions. The reason behind the request for severe punishment, as given by the prosecution, is that Floyd was particularly vulnerable at the time of his death. Additionally, the gross abuse of power by a Police official and racial discrimination call for stricter penalty. Lt. Richard Zimmerman, the longest-serving officer in the Minneapolis Police Force testified against Chauvin at the trial by stating that his conduct was in gross violation of the police policy. He further condemned his brutal act of choking Floyd, and termed it as use of “deadly force”, which was “completely unnecessary” in the given circumstances. Such testimonies, leading to Chauvin’s conviction, also demonstrate the brutal and inhumane nature of the acts, which evidently warrants an aggravated sentencing.
Can the court depart from the standard practice and increase the punishment for convicts based on the nature of the act and the circumstances of the case? Yes; while sentencing a convict, a court may provide for a severe punishment based on factors, which in the court’s opinion, have aggravated the crime. Such aggravating factors could include prior conviction, vulnerability of the victim, hate crimes, etc.
Aggravating factors are an exception to the principle of “effective and proportionate standard” in IHL and IHRL, which suggests that reparations for human rights violations should be proportional. The UN Human Rights Office of the High Commissioner in its commentary on ‘Recommended Principles and Guidelines on Human Rights’ provides that States must consider making legislative provisions for additional penalties where aggravating circumstances are found to violate human rights (Guideline 4.3). Thus, these factors are a way to balance the inequality that might exist in criminal sentencing, owing to human rights violations that might go unnoticed under statutory law. In this particular case as well, the prosecution has a right to request for harsher punishment on any of the grounds.
Understanding the Blakely Factors
After the verdict in Chauvin’s case, considering the prosecution’s request, Judge Peter A. Cahill granted one week to file written arguments on the Blakely Factors.
The U.S. Supreme court in Blakely v. Washington propounded what are now known as the Blakely Factors, which essentially allow for a more severe sentence than what is reflected in the sentencing guidelines. This principle originates from an earlier decision of the Supreme Court in Apprendi v. New Jersey, where the court addressed the question of the constitutionality of a New Jersey Hate Crime law. Here, the Court declared the New Jersey Statute unconstitutional as it permitted the trial judge to enhance the sentence, instead of a jury. Thus, the court upheld the sixth amendment rights of the accused, which provide for a speedy jury trial.
Derived from the Apprendi decision, the Blakely Factors apply the same principle to sentencing guidelines. As held in the Blakely decision, it is the jury and not the judge that is authorized to enhance the punishment of the offender, after taking into account relevant facts that lead to such a conclusion beyond reasonable doubt. Thus, the principle that stands is, “Any act that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury and proven beyond a reasonable doubt” in order for the sentence to be aggravated. As is made clear, the jury has the power to sentence a convict for a punishment more severe than what is prescribed by law, or the ‘statutory maximum’. In the present case, since Chauvin consented to the Blakely waiver, the power of the jury to decide can now be vested in Judge Cahill.
Derek Chauvin’s Sentencing
The Minnesota Sentencing Guidelines provide for “Aggravating Factors”, which allow for increasing the punishment. These factors include cruel treatment of the victim, commission of the act in the presence of a child, or where the victim was physically vulnerable, among others.
Applying these factors to the case of Chauvin, we notice how it squarely qualifies for an aggravated sentencing. Firstly, the fact that the killing of George Floyd took place publicly in open daylight, the presence of children cannot be ruled out. Secondly, Chauvin’s act of choking Floyd with his knee for nine minutes, and refusing to check his pulse after repeated requests from an off-duty firefighter on the scene hint towards an understandably cruel treatment. Lastly, the fact that Floyd was also apparently physically vulnerable, with his hands cuffed and a kneeling officer on his neck, makes the case eligible for an aggravated sentencing.
Need for Prompt Action
The Committee on the Elimination of Racial Discrimination (CERD) in its 103rd session in April 2021 included “early warning measures and urgent action procedures” for discussion in its agenda. CERD in the Convention on the Prevention and Punishment of the Crime of Genocide also noted the urgency of identifying early warning signs, “to detect and prevent at the earliest possible stage developments in racial discrimination that may lead to violent conflict and genocide”.
In this day and age where racism has slid deep through the cracks of not only the society but state authorities and Police forces, it is imperative that such criminal acts do not go unpunished or under punished. It is also essential to give timely verdicts, and sentencing Chauvin with a harsher penalty than what is prescribed in the guidelines is crucial to set a precedent for such hate crimes. George Floyd, and numerous other victims of racist attacks in the US deserve justice, and Chauvin’s aggravated sentence could serve as a deterrent for such acts in the future.
The sentencing hearing of Derek Chauvin, which is scheduled for June 25, and the ‘COVID-19 Hate Crimes Act’ could serve as a watershed in the history of racial violence in the US. The two legal developments might potentially pave way for a more inclusive American society, where hate crimes are not only noticed, but justifiably dealt with.