Steven Wright, a clinical associate professor at the University of Wisconsin at Madison, teaches criminal appellate law and creative writing.
The rejection is unfortunate. The influence of victims in sentencing — as well as the use of victim impact statements — has long been controversial. But in this instance, the Arberys went beyond explaining the impact the murder had on their lives. Here, they sought to influence the manner in which the perpetrators of their sorrow would be punished — demanding that they remain in state custody, serving their sentence in a Georgia prison.
“I’m asking on the behalf of his family, on behalf of his memory, and on behalf of fairness that you do not grant this plea in order to allow these men to transfer out of Georgia state custody into the federal prisons, where they prefer to be,” his mother told the federal court.
To be clear, no one should diminish the Arberys’ justified grief, anger and frustration. We should all continue to share their outrage that state prosecutors nearly excused this murder, which was caught on video. We should also admire their efforts to bring to justice three men who nearly benefited from a system that too often shows indifference to the lives of Black men.
At the same time, the family’s search for justice is beginning to look like a quest for vengeance. This is troubling.
In the past, Arbery’s mother has demanded that her son’s murderers receive the death penalty. “Coming from my point of view,” she said in 2020, “my son died, so they should die as well.”
Now, a judge’s decision in the case risks paving the way for someone incarcerated in a Georgia prison to punish Arbery’s killers in a way the legal system would not.
Federal prisons are generally safer than state prisons. Government data also shows that many state prisons are only getting more dangerous. Of course, federal prisons still face safety challenges, as demonstrated by a recent nationwide shutdown following the gang-related killings of two men in federal custody. But the federal system’s reputation for safety motivated Derek Chauvin, the police officer who murdered George Floyd, to agree to serve a longer sentence in federal custody to avoid a shorter stay in state custody.
Georgia prisons are among the most dangerous in the nation. Gang violence is rampant. Video shows the bloody consequences of a 2020 riot at Ware State Prison in Waycross, Ga., that injured both guards and incarcerated people. Last year, the Justice Department opened a sweeping investigation into whether the Georgia prison system provides incarcerated people with sufficient protection from physical harm at the hands of others serving time.
Many factors contribute to the violence and misery in Georgia’s prisons, which also have one of the highest suicide rates in the nation. Corrections officer recruitment and retention have been a particularly stubborn problem; 71 percent of newly hired state corrections officers quit within a year of service, according to a recent shocking statistic.
As one man incarcerated in Georgia put it: “You gotta be on point all of the time. You can’t count on the guards to protect you.”
In other words, it is possible that, in a Georgia prison, Arbery’s murderers could themselves become victims of lethal violence, possibly because of prison guard inattention, or possibly with prison guard participation. After all, these men committed one of the most high-profile racially motivated murders in Georgia history. And let’s not forget that Gregory McMichael, one of the killers, was a former police officer.
These men will surely have a target on their backs.
If I were in the Arbery family’s shoes, I can’t say for sure that I wouldn’t hope for the cruelest of fates to be imposed on those who hurt the person I loved. But our justice system shouldn’t cater to the rage of victims and grieving families, even in cases involving repugnant criminals who committed egregious crimes.
Our system of justice — and with it our system of punishment — must consider many factors. Among these, the Constitution requires that federal prosecutors and courts adopt a broader, less vengeful perspective, one that honors other sentencing principles, including the possibility that incarcerated people may one day be rehabilitated.
Above all, prosecutors and the courts have a duty to ensure that the incarcerated — yes, even the killers of Ahmaud Arbery — do not suffer for suffering’s sake. In this case, denying a plea deal is not any form of justice.