in light of her earlier traumatic experience. One recent case accorded legal weight to such “Negrophobia” by holding that an ordinary person assaulted by an anonymous Black individual might develop a pathological fear of all Blacks sufficient to justify an award of disability benefits.1 Invoking the same psychological proposition, our defendant might contend that her Negrophobia is relevant to the reasonableness of her reactions to the supposed assailant.
Because the concept of reasonableness drives self-defense doctrine, each of these race-based arguments might result in a determination that the shooter should be excused for shooting the Black bank customer. Indeed, recent experience shows that defendants in self-defense cases often exploit the racial fears of jurors in asserting the reasonableness of their fear of supposed assailants who are Black.2 The meaning of race does not necessarily “speak for itself” in these cases; defense attorneys construe race in subtle and not-so-subtle ways with the goal of exonerating their clients. Homicide (and wrongful death) trials that center around race-based defenses, therefore, are telling crucibles in which to test the fairness of acting on racial fears.
To appreciate the growing acceptance of racially charged arguments of reasonableness in self-defense cases, one need go no further than the notorious New York subway vigilante case of People v. Goetz.3 The defendant, Bernhard Goetz, successfully claimed that his shooting of four Black teenagers on a crowded subway after two of them smiled at him and “asked” for five dollars was justified as an act of self-defense. Goetz opened fire on the youths as soon as they “asked” for money, shooting some while they were retreating from the scene. He later confessed that he knew none of the youths had a gun. Goetz’s defense attorney, Barry Slotnick, played on the racial factor throughout the trial, relentlessly characterizing the victims in subhuman, stereotype-laden terms such as “savages,” “vultures,” “predators on society.”4 The tactic worked. Goetz was acquitted by a predominantly White jury.
Exploitation of racial fears is also evident in the trial of the four White Los Angeles police officers who beat Rodney King. Although this was not strictly a self-defense case, public attention riveted on the White policemen’s perception of the threat posed by an unarmed Black man. Throughout the trial, the defense teams made concerted efforts to portray King as an animal or monster. Indeed, one of the defendants, Stacey C. Koon, testified that King was “a monster-like figure akin to a Tasmanian devil.”5 In his closing argument, the attorney for defendant Laurence M. Powell stressed that the officers’ blows were controlled efforts to subdue King, “a Black man” who was stopped for speeding, who tried to evade the police, and who only reluctantly complied with their commands.6 How legitimate are such strategies? Consider first my bank ATM example.
Racial fears are legally relevant to the reasonableness of the shooter’s reaction to the young Black man under self-defense doctrine, technically. Nevertheless, we must reject all her racebased claims of reasonableness. My concession that racial fears are “technically” relevant in self-defense doubtless will raise some eyebrows. “If he admits that on a formal level racial fears are legally relevant, but still rejects their acceptability,” some will say, “then he must be willing to sacrifice logical consistency on the altar of political correctness.” This objection reflects a specious but increasingly popular attack on antidiscrimination programs—formalism. A variety of pinched literalism that exalts form over substance, formalism holds that we look only at the letter of the law, disregarding its animating spirit, and that we equate people and situations that are superficially similar, ignoring deeper differences.
Many cries of “reverse discrimination” grow out of this fallacy: “If historically it was wrong for institutions to consider characteristics such as race and gender to exclude marginalized groups from core community activities, it is just as wrong for these institutions to consider such characteristics in affirmative efforts to include these same marginalized groups in these activities.” Another aspect of the fallacy is the seemingly progressive “color-blind perspective” (or “color-blind formalism”). Under this perspective, decision makers—jurors, judges, employers, teachers, and so forth—must completely ignore race (as well as gender, sexual orientation, and any other markers of social marginality) when making social judgments of others. “Because historically race-consciousness has been used by bigots to oppress minorities,” say advocates of the color-blind perspective, “it is racist and unjust for current-day decision makers to be race-conscious when making social judgments about Blacks (or women or gays and lesbians). Consciously thinking about race will lead either to discrimination against Blacks or to reverse discrimination in their favor.” Formalism thus lumps situations together on the basis of some limited set of similarities and willfully ignores the very different interests, values, and social policies that distinguish them on a deeper level.
This book seeks to debunk such facile formalism. One vehicle for this debunking will be a comparison of the arguments made in defense of battered women who kill and those made in defense of minorities from “rotten social backgrounds” who kill. This comparison is especially needed in view of the O. J. Simpson trial and its rancorous aftermath. For, from the standpoint of popular reactions to the case, the trial seemed to pit the interests of one socially marginalized group, abused women, against those of another, Blacks. Trial watchers especially sensitive to injustices suffered by Blacks in the American justice system seemed more likely to endorse the acquittal, while those especially attuned to the plight of battered women seemed more likely to decry it.
Far from being antithetical, the interests of battered women and disadvantaged Blacks (and other minorities) coincide. At bottom, advocates for battered women and advocates for disadvantaged minorities must overcome the same entrenched conservative assumptions to successfully defend their respective clients. These assumptions bolster the subordination of women and impoverished Blacks by making their plight seem natural and just. We will trace the connections between their shared struggle against domination.
We will also examine recent research in human psychology that demonstrates that color-blind formalism—the effort to ignore a person’s racial identity in making social judgments of her—promotes the very discrimination it professes to prevent. Decision makers who seek to reduce their biased judgments of stereotyped groups must practice color-consciousness, not color-blindness. Inculcation in color-blind orthodoxy is so firm and pervasive in this country, however, that many readers initially may need consciously to suspend disbelief in approaching this thesis. But I will build my argument for race-consciousness in social decision making on hard empirical proof, not faith.
A new numbers racket—discrimination by mathematics— will be investigated as well. Defenders of “rational discrimination” (economist Walter Williams, columnist Richard Cohen, pundit Dinesh D’Souza, and others) charge into discussions of racial justice brandishing the sword of statistics about Black crime rates, a weapon that upon closer inspection turns out to be a hollow stage prop, a nerfsword. Careful analysis will reveal not only that “rational discrimination” is not reasonable, it is racist.
In exposing the “rational discrimination” canard, I will track the formalistic impulse to what may be its most staunchly defended bastion; namely, “high objectivity”—the assumption that factual determinations and value judgments, like two separate tubs, sit on mutually independent bottoms. We will see that, contrary to this assumption, formally identical factual statements about the world, such as “I know my dog is leashed,” cannot be treated the same when uttered in different situations. Put differently, even if I have exactly the same factual information about my dog in two different situations, it may be reasonable for me to say “I know my dog is leashed” in one situation, but totally unreasonable—even criminal—for me to say it in another. In the end, therefore, by plumbing many unexamined assumptions about law, justice, moral reasoning, human psychology, and “high objectivity,” I hope to ferret out the injustices of formalism.
Stubborn Optimism
My
