Wright was a leftist, and in Native Son he created a Communist defense attorney who delivers a passionate indictment of racism. In the attorney’s plea for life imprisonment he attempts to answer the question of “why a man killed.” The answer he proposes is found in the nexus between racial oppression and Bigger’s life. This link between society and the individual is at the crux of the black rage defense.
Thirty-one years after Native Son was written, black rage and black pride became the defining characteristics of two seminal criminal cases. The murder trial of a Chrysler autoworker in Detroit and the bank robbery trial of an unemployed draftsman in San Francisco were the incarnation of what became known as the black rage defense.
What is the black rage defense? It is a legal strategy that centers on the racial oppression experienced by the defendant. It is an attempt to explain to the judge and jury how the defendant’s environment contributed to his or her crime. It shows how concrete instances of racial discrimination impacted on the mental state of the defendant.
It is essential to understand that the black rage defense is not an independent, freestanding defense. That is, one cannot argue that a defendant should be acquitted of murdering his boss because the boss fired him out of racial prejudice. The innovation inherent in the black rage defense is that it merges racial oppression with more conventional criminal defenses.
The law has always recognized state-of-mind defenses. For example, if a person is insane at the time of the criminal act, he can raise his mental condition as a defense. So if, in the above example, the white boss’s racist behavior caused the black worker to lose the ability to control himself, a defense of diminished capacity would be allowed. Such a defense would reduce first-degree murder to second-degree murder or manslaughter. Another example is a young African American surrounded by three skinheads wearing Nazi symbols and calling him “nigger.” If he pulls a gun and shoots one of them, he can raise a self-defense claim. As part of the defense he would be allowed to argue that given his experience with racists it was “reasonable” for him to assume that he was in danger of serious bodily injury, and therefore it was legally justifiable to shoot before he was actually attacked.
State-of-mind defenses allow us to bring the racial reality of America into the court by presenting “social context” or “social framework” evidence. I have also described it to judges as “social reality” or “racial reality” evidence. The phrase “black rage defense” describes a lawyer’s gestalt, a theory of the case, an all-emcompassing strategy that uses racial reality evidence to establish self-defense, diminished capacity, insanity, mistake of fact, duress, or other state-of-mind defenses allowed by the criminal law.
In a larger sense, the black rage defense educates the judge and jury about society’s role in contributing to the criminal act. It is part of a growing body of recognized criminal defenses that have forced the courts to consider the effects of environmental hardship. The Vietnam Vet Syndrome and post-traumatic stress disorder used to defend veterans scarred by the war in Vietnam and African American teenagers scarred by the war in urban America illustrates state-of-mind defenses rooted in social reality. The battered woman defense parallels the black rage defense, in introducing evidence of gender oppression in defense of women charged with crimes of violence against their abusive husbands and boyfriends. The cultural defense, another rapidly growing legal strategy, uses evidence of a defendant’s culture (e.g., Laotian and Vietnamese refugees, Chinese immigrants, or Native Americans) to explain his or her state-of-mind in defense or mitigation of criminal charges.
One major misconception surrounding the black rage defense is that it is a race hatred defense. This notion grew out of cases such as that of Colin Ferguson. Ferguson is the Jamaican immigrant living in New York who killed six people and wounded nineteen others on a Long Island commuter train in 1993. Initially his lawyers said they were going to use a black rage defense as part of an insanity claim. Ferguson later fired them and represented himself, denying that he had done the shootings. In the massive publicity surrounding the case many pundits portrayed the black rage defense as an attempt to justify violence against white people solely on the basis of previous racial oppression. Commentators also criticized the defense as an abdication of individual responsibility. These criticisms are enshrined in Alan Dershowitz’s book The Abuse Excuse, which attacks all environmentally based defenses.
In fact, no black rage defense has ever argued that African Americans are entitled to attack whites solely because of a history of oppression. However, the improper use of the defense by well-meaning lawyers can leave an impression that racial violence against individual whites is a legitimate response to racial discrimination. A mistaken strategy can also lead to a “poor-me” characterization of the defendant. A review of actual cases reveals that judges and juries will reject a defense based on race hatred or victimization.
These inaccurate stereotypes of black rage cases can be symbolized by the picture of an angry black male with a gun in his hand standing over a dead white man. In fact, the cases include all types of crimes, and the black rage defense is often used in positive situations such as self-defense. Nor is it limited to men—African American women also feel agony, grief, misery and anger. The richness of African American literature reminds us of their rage. Just a few years after the success of Native Son, Ann Petry’s novel The Street was published. Petry’s heroine, Lutie Johnson, uses a candlestick to crush the skull of a black man who has abused her. Her violence is described as a reaction to a “lifetime of pent-up resentment.”
First she was venting her rage against the dirty, crowded street. She saw the rows of dilapidated old houses; the small dark rooms; the long steep flights of stairs; the narrow dingy hallways; the little lost girls in Mrs. Hedges’ apartment; the smashed homes where the women did drudgery because their men had deserted them.
Then the limp figure on the sofa became ... the insult in the moist-eyed glances of white men on the subway; became the unconcealed hostility in the eyes of white women; became the gaunt Super pulling her down, down into the basement.
Finally, and the blows were heavier, faster, now she was striking at the white world which thrust black people into a walled enclosure from which there was no escape....
She saw the face and head of the man on the sofa through waves of anger in which he represented all these things and she was destroying them.
Although almost all recorded black rage defenses involve male defendants, chapter 10 in this book, on post-traumatic stress disorder, highlights the juvenile case of seventeen-year-old Felicia Morgan, who in 1991 robbed and killed a teenage girl in Milwaukee. Chapter 9 critiques the two high-profile trials of Inez Garcia, who shot and killed a man who aided his friend in raping her. Garcia is not African American, but the strategy of the black rage defense can and should be used by other races.
The concept that environmental hardship leads to criminal acts regardless of a person’s race can also be found in African American literature. Black rage is the rage of the oppressed. Willard Motley, in his 1947 bestsel-ling novel Knock on Any Door, shows how poverty and police abuse cause an Italian American to turn to crime. Like Bigger Thomas, Nick Romano grew up in Chicago. Although their worlds are separated because of segregation, much of their lives are similar. Motley created a defense lawyer who asks the jury to answer the question, “Who is Nick Romano.”
All of his life has been a dirty, murky, rainy, foggy night.... We might say Nick is guilty—he is guilty of having been reared in desperate poverty in the slums of a big city.... At home, a father who does not understand and who, with a stick or club chases you into the street. Walk with Nick along West Madison at night when the beat cop comes swaggering down the street.... Stay two nights in jail for no other reason than that you were walking on the street. Be slapped!—punched!—kicked!—if you so much as answer—the law—back.
Nick Romano, twenty-one years old, is executed, just as Bigger Thomas is executed. Motley ends the novel by warning the reader that if one were to walk down