Combating Unconscious Discrimination in the Courtroom
ACKNOWLEDGMENTS
I presented portions of this book at various workshops, colloquia, and faculty seminars in Colorado, Indiana, Pittsburgh, and at the University of Southern California. I gained much from these workshops, seminars, and colloquia, and thank all those who participated. Parts of the book were also presented at the American Association on Law Schools Conference on Torts and at another AALS Conference on Evidence. I received valuable comments from participants at both conferences.
Outside these organized forums, Phreda Devereaux provided extremely helpful remarks on the chapter on Negrophobia; Frank McClelland offered penetrating comments on the chapter on stereotypes and prejudice; and Martha Chamallas, Jules Lobel, Rhonda Wasserman, and Welsh White read large portions of the manuscript, making many very thoughtful remarks. The discussions of battered women benefited greatly from suggestions by Veronica Hobbs of Advocates for Basic Legal Equality. I am also indebted to Martine Beauman, Rhonda Evans, Dominck Lee, Piyush Seth, and Christopher White for valuable research assistance, and to LuAnn Driscoll, Karen Knochel, Darleen Mocello, Carolyn Rohan, and Barbara Salopek for patient, precise, tireless document processing assistance.
I am also grateful to my editors, Richard Delgado, Niko Pfund, and Jean Stefancic, and to New York University Press. And I am thankful to the following journals for permission to use portions of essays that first appeared in their pages: Stanford Law Review, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians, and Involuntary Negrophobes [46 Stan. L. Rev. 781 (1994)]; California Law Review, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit [83 Cal. L. Rev. 733 (1995)].
Negrophobia and Reasonable Racism
Introduction
“RATIONAL” DISCRIMINATION AND THE BLACK TAX
It is a rainy night in a combined residential and commercial neighborhood in a predominantly White upper-middle-class section of a major U.S. city. It is 10:30 P.M. It is raining hard. Although most of the fashionable shops and boutiques in the neighborhood have closed, the neighborhood bank contains an automatic teller. The machine is located in a lobby between two sets of glass doors, the first of which opens directly into the bank and is locked at closing each day, while the second leads to the public sidewalk and remains open twenty-four hours.
A middle-aged resident of the neighborhood enters the bank’s lobby, inserts her bank card into the machine, and requests two hundred dollars. As she waits for her transaction to be processed, the woman suddenly notices a figure moving directly toward the lobby from across the street. Focusing her full attention on the approaching figure, she notes that the person is a young man (at most twenty-something); that he is wearing a trench coat with an upturned collar and a tarpaulin hat pulled down even with his eyes (perhaps in deference to the pouring rain); and that he is Black.
The trench-coat-clad young man glances down the deserted street as he reaches the lobby and then enters, pushing his right shoulder against one of the swinging glass doors. As he pushes the door open, he unbuttons the collar of his trench coat with his right hand and reaches into the coat in the direction of his left armpit. With his eyes focused on the space beneath his coat into which he is reaching, he takes hold of something and begins to withdraw it.
Panic-stricken and conscious of the rhythmic clicking of the automatic teller churning out ten fresh twenty-dollar bills, the woman pulls a small .22 calibre pistol from her purse and levels it at the entering figure. As the young man looks up from his coat, he sees the pistol trained on him and reflexively thrusts his right hand—which now contains a billfold retrieved from his inside breast pocket—out in front of him, shouting at the woman not to shoot. Perceiving a handgun thrust in her direction and startled by the man’s unintelligible shouts, the woman shoots the Black man, who dies clutching his bank card.
This troubling tableau taps the most disturbing source of dread in modern America—Black violence. Polls and studies repeatedly show that most Americans believe that Blacks are “prone to violence.” Anecdotal evidence points to the same conclusion. Many a would-be fare who happened to be Black has developed tennis elbow trying to flag down a taxi, incredulously watching as fellow White hailers are immediately picked up and whisked away. Further, as talk-show diva and media magnate Oprah Winfrey discovered when she was denied admittance to a tony boutique in Chicago that used a buzzer system to screen out “suspicious persons,” even great fame and fantastic wealth do not guarantee immunity against Black stereotypes. As Stevie Wonder observed in one of his most trenchant lyrics, “You might make big cash/but you cannot cash in your face.” And the face of crime, for many Americans, is Black.
In claiming self-defense, the shooter may argue that the Black victim’s race is relevant to the reasonableness of her belief that she was about to be attacked. Her claim might be based on any of three distinct arguments. First, she could insist that it was reasonable to consider the victim’s race in assessing the danger he posed because most people would do so. She might introduce studies or anecdotes demonstrating the frequency with which Americans make assumptions about an individual’s character on the basis of race, and argue that she should not be punished for basing her response on the widely held belief that Blacks are more prone to be criminals than Whites. Second, she could point out that, independent of typical American beliefs, her consideration of the victim’s race was reasonable because Blacks commit a disproportionate number of violent crimes and therefore pose a greater statistical threat. “Rational discrimination” would be her watchword. In framing this argument, she would show that large statistical differences exist between the crime rates of Blacks and non-Blacks, and she would assert that she knew of, and reasonably relied on, these statistical probabilities when deciding to shoot.
Finally, if the woman had previously been violently assaulted by a Black individual, she might maintain that her overreaction to the victim’s race was reasonable 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