How a Plea Deal in the Arbery Hate Crime Case Unraveled

In federal cases, victims have a “reasonable right to confer” with prosecutors and the right to be informed of any deal. But prosecutors must weigh a host of other factors including the strength of their evidence, the interests of justice, and ensuring that similar crimes be met with similar punishments. A plea deal can ensure that a defendant will suffer some consequences, even if a victim views them as too lenient, while a trial may result in a full acquittal. And, prosecutors do not represent victims.

“If you’re a federal prosecutor, your client is the United States,” said Michael J. Moore, an Atlanta lawyer who served as the U.S. attorney for middle Georgia from 2010 to 2015. “Those lines, when you have a victim of a crime, can become blurry. There’s the human side of you that’s very empathetic to the victim’s situation, and then there’s maybe the more academic side and professional side, and professional obligation, that has to guide your conduct.”

Sometimes victims are on the side of mercy. When Dylann Roof killed nine members of a predominantly Black church in Charleston, S.C., federal prosecutors successfully sought the death penalty despite the church’s opposition to capital punishment.

In the Arbery case, Travis McMichael, 36, his father Gregory McMichael, 66, and a third man were charged with murder and convicted in state court. Federal prosecutors pursued other charges, including hate crime charges and attempted kidnapping. Georgia did not have a hate crime statute at the time of Arbery’s death.

Ms. Vance, the former prosecutor, said the deal that federal prosecutors struck in the Arbery case had been a good one. Hate crimes are difficult to prove at trial, she said. The deal ensured that the two men, Travis McMichael, 36, and his father, Gregory McMichael, 66, would serve significant time even if their convictions in state court were overturned on appeal, and it barred them from appealing the federal case. “That was a conviction that would stand for all time,” she said.

In court, the Arbery family objected to the deal at least in part because it would have allowed the McMichaels to serve time in federal prison, which is generally regarded as having better, safer conditions than state prisons. This may be especially true in Georgia, where last fall the Justice Department launched an investigation of state prisons, citing a high rate of murder and assault.