CHAPTER ONE

THE "REASONABLE RACIST": A SLIPPERY OXYMORON

The "Reasonable Racist" asserts that, even if his belief that Blacks are "prone to violence" stems primarily from racism--that is, from a belief in the genetic predisposition of Blacks toward greater violence, from uncritical acceptance of the Black cultural stereotype, or from personal racial animus--he should be excused for considering the victim's race before using force because most similarly situated Americans would have done so as well. In our criminal justice system, "blame is reserved for the (statistically) deviant," asserts the Reasonable Racist. "Therefore," he concludes, "an individual racist in a racist society cannot be condemned for an expression of human frailty as ubiquitous as racism."

The Reasonable Racist's position, though ultimately specious, can muster more factual and legal support than one might think. With regard to his claim that average Americans share his fear of Black violence, the Reasonable Racist can point to evidence such as a 1990 University of Chicago study which found that more than one out of two Americans endorses the proposition that Blacks tend to be "violence prone." Moreover, numerous recent news stories chronicle the widespread exclusion of Blacks from shops and taxicabs by anxious storekeepers and cabdrivers, many of whom openly admit to making race-based assessments of the danger posed by prospective patrons. Thus, it is unrealistic to dispute the Reasonable Racist's depressing contention that Americans tend to associate violence with Black people.

That most Americans share the Reasonable Racist's discriminatory reactions to Blacks does not necessarily mean that they also share his racial prejudice. Many may claim to have completely nonracist grounds for their fear of Blacks. Specifically, many may insist that their racial fears are born of a sober analysis, or at least of rough intuition, of crime statistics that suggest Blacks commit a disproportionate number of violent street crimes. We shall consider such "rational racial fears" in the next chapter. Here we focus on irrational racial fears for two reasons. First, as we shall see in the discussion of unconscious mental reflexes in chapter 6, irrational factors figure to some extent in the racial fears of all Americans. Thus, just as he can prove that most Americans share his belief that Blacks are "prone to violence," the Reasonable Racist can also prove that, like him, most Americans harbor irrational responses to Blacks. Thus, his most controversial contention is that most Americans' heightened fear of Blacks is based primarily on conscious racial animus. This is equivalent to saying that most Americans are racist. I vigorously dispute this contention throughout this book.

The most apt description of the motivations that drive racial fears is "scrambled eggs." That is, racial fears rest on mixed motives, with the yolks of the rational impulses completely and seemingly inextricably commingled with the irrational whites. To probe the legal relevance of racial fears, these motives must be temporarily unscrambled and separately evaluated. If neither the irrational nor the rational motives can justify racial discrimination standing alone, there is no reason to recognize such discrimination when its underlying motives revert to their naturally scrambled state. Therefore, let us provisionally accept the Reasonable Racist's disquieting assumption that, like him, most Americans base their heightened fear of Black violence primarily on racism.

From the standpoint of legal doctrine, the Reasonable Racist also seems to have a case. Self-defense is generally defined as the use of a reasonable amount of force against another when the defender honestly and reasonably believes that she is about to be attacked, and that she must use such force to repel the attack. To be excused, then, the shooter in our tableau must convince the jury that she honestly and reasonably believed that she had to shoot just when she did to avoid being killed or seriously injured, and that nothing less drastic than deadly force would have saved her.

Reasonableness is the linchpin of legal self-defense in two respects. First, even if the defender is mistaken in her belief that she is under attack (as was the shooter in the tableau), she has a valid defense as long as her mistaken belief was reasonable. Second, from a juror's perspective, the reasonableness of a belief is a window on its honesty; that is, the more reasonable the belief seems to a jury, the more likely a jury is to be convinced that the defendant honestly held the belief herself. In the law of self-defense, therefore, "reasonableness" is the pivotal standard to which all other legal requirements are related and by which all others are measured.

The Reasonable Racist's case hinges, therefore, on whether he can establish that typical beliefs are reasonable beliefs. The notion that typical beliefs are reasonable finds legal expression in certain familiar personifications of the reasonableness requirement, such as the "ordinary prudent man," "the average man," "the man in the street," and "the man who takes the magazines at home, and in the evening pushes the lawn mower in his shirt sleeves." The layreader must understand that "reasonableness" in legal discourse is a term of art, that is, a word whose legal usage differs markedly from that of ordinary language. A "reasonable" attitude or belief in legal discourse is not necessarily rational or right from some objective, eye-in-the-sky point of view. Instead, as the "average man" formulation of the reasonableness standard suggests, courts tend to equate reasonable beliefs and attitudes with typical beliefs and attitudes. In the words of one criminal law expert, the Reasonable Man "is more appropriately described as the Ordinary Man (i.e., a person who possesses ordinary human weaknesses)." Moreover, in practically applying the reasonable person standard, the jurors--themselves typical people holding typical beliefs--ordinarily judge the reasonableness of the defendant's beliefs by projecting themselves into the defendant's situation and asking whether they would have shared his beliefs under similar circumstances. If the answer is yes, the Reasonable Racist maintains, the defendant should prevail.

How We Know What We Know: The Typical, the Reasonable, and the Accurate

Typical beliefs may be considered reasonable for two very different reasons. First, they are presumed to be accurate. Most of our claims to knowledge about the world rest on typical beliefs; we assume that the propositions about the world that "everyone knows" (propositions often equated with "common sense") are true unless we have reason to doubt them. Of course, common sense may reflect and perpetuate oppressive myths and expedient misconceptions. Many women died excruciating deaths several hundred years ago because of the typical belief that witches cast spells that poisoned well water and caused crop failures. To see the disturbing implications for self-defense doctrine of the deep-seated assumption that typical beliefs are accurate, we need only make a few modifications in our earlier hypothetical situation and place it in the first half of the seventeenth century, the height of witch burnings in Europe:

The owner of a general store is counting his lucre at day's end when out of the corner of his eye he suddenly notices a figure approaching his store. Focusing his full attention on the approaching figure, he notes that the person is an old woman (at least 65); that she is wearing a black dress and a cone-shaped black hat; and that she has a wart on her nose. As the old woman crosses the threshold, she reaches toward a pouch on a string around her neck (where she keeps her money, to buy something from the storekeeper) but which the storekeeper thinks is a pouch for potions. Panic-stricken and conscious of the bad graces he is in with the old women of the town (he has never passed up an opportunity to bilk or insult one he came across), he pulls a crossbow from under his counter and levels it at the entering figure. Seeing the crossbow trained on her, the woman thrusts her right hand in front of her while shouting at the man not to release the arrow. Perceiving spell-inducing gesticulations and unintelligible incantations, the storekeeper shoots and kills the old woman, who dies clutching a gold ducat.

However disturbing it may seem, in a seventeenth-century court that indulged the still prevalent presumption of accuracy for typical beliefs, there is no reason to think the storekeeper's self-defense claim would not pass muster. Yet, despite the long and deplorable litany of injustices that historically have sprung from blind faith in conventional wisdom, conservatives continue to tout the sovereignty of "common sense" (Oliver North calls his syndicated talk show "common sense radio--for all America," and Philip Howard's book, Death of Common Sense, has been celebrated by conservatives for its catchy title, even though its substance does not necessarily bolster the conservative agenda).

American courts have shown undue deference to typical beliefs even in the case of scientific knowledge, an area where one would hope for a more searching truth-seeking methodology than mere nose counting. Until very recently, the test courts adopted for determining whether an expert could give an opinion on a scientific matter was whether the expert's methodology and conclusions were consistent with the consensus of the scientific community. In other words, courts would not permit experts to talk about theories and findings that were not typical for the scientific community. The courtroom doors were closed to cutting-edge iconoclasts--contemporary counterparts of Copernicus and Galileo were denied a voice in the high halls of justice. Opinions that did not conform to prevailing scientific paradigms and practices were essentially treated as "junk science." Such judicial genuflection to scientific orthodoxy has abated somewhat following the Supreme Court's 1993 Daubert decision, in which the Court rejected the "general acceptance" test for scientific evidence in federal courts. Nevertheless, the pitfalls of relying too heavily on conventional wisdom, "common sense," and hoary tradition in the search for truth can hardly be overstated.

Whether the reference group for determining what is typical is society at large (as in the case of the witch burnings) or some privileged subgroup within society (as in the case of the scientific community for purposes of expert testimony), our legal system tends to reward conformity and penalize nonconformity with the majority. Certainly the reasonableness standard, in its classic legal formulations (e.g., the "average man"), privileges the perspective of the majority. This approach to reasonableness might be equated to the problem of the Procrustean bed. In Greek mythology, Procrustes was a highwayman who waylaid unsuspecting travelers and dragged them to his lair, where he bound them to his bed. Although the abducted travelers came in many different sizes, Procrustes' bed came in only one. If a hapless traveler proved too short for his host's bed, Procrustes racked and stretched him into conformity; too long, Procrustes lopped of the offending extremities. In the end, the diversity of dimensions that the different travelers embodied was reduced to bland uniformity--a consummation devoutly sought by current proponents of Procrustean legislation that is fashioned to force the body politic to speak only one language, form only one kind of sexual union, worship only one god, and embrace only one worldview.

Procrustean beds abound in the law, but perhaps nowhere more than in the legal definition of reasonableness, which figures centrally in such areas as torts, contracts, criminal law, and criminal procedure. The legal definition of reasonableness is uniquely insidious in that it takes the merely typical and contingent and presents it as truth and morality, objectively construed. For example, according to legal usage, the "objective" standard of reasonableness encompasses those beliefs and attitudes that are shared by most people. In those limited instances in which a court instructs a jury to look at a situation from the standpoint of an actor's atypical beliefs and attitudes, it is said to apply a "subjective" standard of reasonableness. Thus, a battered woman may believe that calling the police or attempting to separate from her batterer will only put her in greater danger. Accordingly, she may shoot him in his sleep. In judging the reasonableness of her belief, typical jurors may believe that calling the police or walking out would have prevented further harm. Some courts would characterize the jurors' beliefs in this case as the "objectively" reasonable ones, while they would admit evidence of the battered woman's atypical beliefs (especially expert testimony about those beliefs) only under the "subjective" test of reasonableness.

The problem with this approach is that the battered woman's beliefs may be decidedly more rational and accurate than the jurors'. The beliefs of ordinary jurors about battering relationships are often based on inexperience and naivete, or on ideological suppositions that women who remain in battering relationships masochistically enjoy being beaten, deserve to be beaten, or at least assume the risk of beatings. Saying that the wrongheaded beliefs of typical jurors meet the "objective" standard of reasonableness, while the atypical but accurate and rational beliefs of the battered woman are only relevant under a "subjective" standard of reasonableness, disparages the woman's beliefs and wrenches all recognizable meaning from the term "objective."

In the end, typical beliefs--in courts and in everyday life--still carry with them a presumption of accuracy. Accordingly, typical beliefs about the propensity of Blacks toward violence are deemed reasonable (i.e., accurate) insofar as we have no reason to doubt them. Often, however, a racially sensitive defender will not be claiming that his fearful reaction to Blacks is rational, but merely excusable. I therefore turn to the legal relation between the typical and the excusable.

Why We Blame Whom We Blame: The Typical, the Reasonable, and the Damnable

Alternatively, typical beliefs may be considered reasonable on the supposition that they are not blameworthy, however inaccurate or even irrational they may be. This is the claim of reasonableness invoked by both the Reasonable Racist and, as we will discuss later, the Involuntary Negrophobe. According to this position, even admittedly wrong judgments about a fact or situation should be excused so long as most people would have reached the same wrong conclusions under similar circumstances. A roll of keys that looks just like a gun in the eerily flickering lights of a bank lobby provides a simple illustration of this excuse. The argument rests on the premise that "blame is reserved for the (statistically deviant); we are blamed only for those actions and errors in judgment that others would have avoided." Under a noninstrumental theory of criminal liability (that is, a theory that determines legal liability solely on the basis of an actor's just deserts, and that gives no weight to social policy in fixing liability), it is unjust to punish someone like the Reasonable Racist since his typical beliefs are by definition not morally blameworthy.

Speaking to a jury of other seventeenth-century men, the storekeeper who shot the supposed witch would argue that his belief was typical and accurate; speaking to a modern jury, however, he might concede that his beliefs were inaccurate, but still argue that they were typical for someone from his cultural background, and that therefore he was not blameworthy for holding such admittedly inaccurate beliefs. When the reference group for determining whether an attitude or belief is typical is not the majority, this kind of claim is referred to as the "cultural defense." Thus, a Hmong tribesman from Laos kidnapped his intended bride in California and raped her in order to officiate their marriage, as is the tradition in his native country. Also in California, a Chinese mother killed her son in an attempt to commit parent-child suicide after discovering her husband's adultery. Through a "cultural defense," these defendants could attempt to negate or mitigate their criminal liability by arguing that they believed they were reasonably committing such acts because their cultural background and beliefs permit, and even encourage, such behavior.

Of course, insofar as our courts reject the claims of these cultural minorities, they raise Procrustean bed concerns. But insofar as they recognize such claims, they raise the problems on which the discussion now centers, namely, the problem of showing undue deference--and giving undue normative legitimacy--to the merely typical. Our investigations will uncover more such conundrums as we proceed.

A variant of the cultural defense is often asserted in defense of some of this country's revered "forefathers." For example, not long ago I heard a Black alumnus of the University of Virginia singing the illimitable praises of his alma mater's founder and benefactor, Thomas Jefferson. "You know, Jefferson maintained that Blacks were a naturally inferior race and remained a slave owner until the day he died," I observed. "Oh, but it is unfair to judge him by today's standards," my interlocutor shot back. "Lots of people owned slaves back then, and most Americans of that era thought it was all right. Besides, Jefferson was a gentleman slaver." I was about to respond that a "gentleman slaver" is like a "nice Nazi," but it occurred to me that such a point would not assail the logic of his position--if anti-Semitism was a typical attitude among Germans in the 1930s and 1940s, how could we by his logic blame individual Germans of that era for holding such typical attitudes?

The problem with the claim that typical attitudes are not blameworthy is easier to recognize in cultural-defense cases, where what is typical for the cultural minority is not typical for the majority, than in cases where what we mean by typical beliefs and values are our very own cherished majoritarian beliefs and values. Acknowledging that our own typical values and beliefs may not reflect absolute truth and justice raises problems of moral and epistemological relativity that many of us would rather avoid honestly confronting. This is why the popular movie Pulp Fiction, though widely touted as iconoclastic, is at its core highly conservative. Early in the movie, the John Travolta character revels in cultural relativity by regaling his cohort in crime, played by Samuel L. Jackson, with stories of the different standards employed in different countries: a different system of weights and measures in France, and different, more permissive drug laws in Amsterdam. Jackson's character revels in the relativity as well, until he partakes of a burger called The Big Kahuna (Big Kahuna is the Hawaiian phrase for high priest), after which he "gets religion." When Travolta is invited to partake of The Big Kahuna, however, he declines. Travolta's refusal to renounce relativism leads to his demise (the price of relativism is death). Jackson, thanks to his espousal of absolutism, dodges the bullet. In the end, Pulp Fiction offers moviegoers relief from the vertiginous relativity of post-modernism via conversion to Judeo-Christian dogma ... follow you who can.

But America is a diverse nation, many of whose members do not subscribe to any monolithic code of moral absolutism and harbor healthy skepticism toward those who profess to have a privileged pipeline to some God's-eye view of truth and justice. Moreover, this country is officially irreligious by constitution. Consequently, are there any coherent grounds upon which to build a critique of the claims of the Reasonable Racist? Is it even possible, let alone just, to discipline a person for beliefs, attitudes, and reactions that they share with most of the people around them, without either appealing to moral absolutes or somehow bootstrapping oneself to a position outside the prevailing belief system and into a God's-eye perspective?

In contrast to an "externalist" critique, which seeks a God's-eye perspective on a set of beliefs and reactions, a more coherent critique draws from an "internalist" perspective by seeking leverage for its critical evaluations from within the belief system itself. An internalist approach criticizes a belief or practice by showing how it contradicts or undermines other important beliefs, practices, values, and convictions within the same belief system. The values of the belief system need not have been handed down from some divine oracle, but rather may evolve gradually from historical processes and political struggles. The high value American culture places on free speech, for example, cannot be deduced from the Ten Commandments, and it took a bloody civil war for antislavery values to take root fully in our cultural belief system. Democratic struggle over moral and legal definitions, on the one hand, and exposure of contradiction and hypocrisy, on the other--these are the defining characteristics of the internalist approach.

Legal disputes in our justice system are argued and resolved within an internalist perspective. Parties to a legal dispute, whether over ownership of a parcel of land or school desegregation, couch their contentions in terms of moral norms and social policies for which there is significant support in society's moral and legal discourse. Thurgood Marshall did not argue Brown v. Board of Education, the landmark school desegregation case, by appealing to some critical morality that lacked roots in the social morality and legal discourse of his times. Instead, he relentlessly hammered home the contradiction between segregation and deep-seated American moral and legal convictions. Applying an internalist methodology, he--like my incarcerated father--found a way to "make the frozen circumstances dance by playing to them their own melody."

Social morality--as distinct from popular morality--provides a basis for critiquing even widely shared beliefs and attitudes. Social morality consists of moral standards rooted in aspirations for the community as a whole, and that can fairly be said to have substantial support in the community or can be derived from norms that have such support. "Popular morality," on the other hand, consists of moral norms that reflect a majority of opinion about appropriate behavior at some particular point in time. Despite considerable overlap between social morality and the popular version, they are not coextensive. Popular opinions about morally acceptable behavior feed social morality, but social morality is a river fed by many streams. A nation's constitutional promises, for example, contribute to its social morality, even when that nation, seized by popular prejudices and opinions about morally acceptable behavior, breaks those promises for a period of time, as it did when the United States interned Japanese Americans in concentration camps during World War II. That the United States has officially repented of its wartime treatment of Japanese Americans and offered monetary restitution for its transgressions points to its own realization that popular judgments of appropriate behavior at a given time may contradict deeper norms and convictions that the formerly popular judgments dismissed too lightly.

Indeed, most constitutional provisions work this way--they are promises a body politic makes to itself, ideally at the behest of its nobler impulses and "higher angels," which it hopes will protect its better self from a later weaker or less just self; they are the ropes Ulysses uses to bind himself to the mast to help him resist the siren songs he knows await him. Sadly, however, given the Supreme Court's recent assault on the Bill of Rights, which has been significantly fueled by the very fear of Black crime that we are considering, it appears that some of Ulysses' robed shipmates are bent on hacking away at his self-imposed coils in the name of siren justice.

Once the relationship between social and popular morality is properly understood, it is easier to see the flaw in the claim of the Reasonable Racist. The Reasonable Racist assumes that the sole function of the reasonable-man test is to reflect popular morality and that the sole objective of the legal system is to punish those who deviate from popular attitudes and beliefs. The role of the courts, from this perspective, is to observe rather than define the attributes of the reasonable man.

Whether courts that apply the reasonable-man standard should merely accommodate prevailing attitudes and practices or instead actively channel them in directions that serve higher social interests is a long-standing legal debate. In the famous torts case of T. J. Hooper, for example, a defendant tug owner argued that the reasonableness of his decision not to equip his tug with a safety device should be judged on the basis of the behavior of most other tug owners. Because most other tug owners also failed to install the safety devices, the defendant argued, his failure to install them should be deemed reasonable. Judge Learned Hand, writing for the court, refused to equate the reasonable with the typical, however. Making it clear that courts do not merely observe, but actively define standards of reasonable behavior, Hand held: "[I]n most cases reasonable prudence is in fact common prudence; but strictly is never its measure; a whole calling may have unduly lagged in the adoption of new and available devices.... Courts must in the end say what is required; there are precautions so imperative that even their universal disregard will not excuse their omission." Hand's recognition that courts have a duty to actively define standards and thereby channel social behavior applies with equal force to both civil and criminal cases.

This analysis exposes the fallacy of equating reasonableness with typicality. Even if the "typical" American believes that Blacks' "inherent propensity" toward violence justifies a quicker and more forceful response when a suspected assailant is Black, this fact is legally significant only if the law defines reasonable beliefs as typical beliefs. The reasonableness inquiry, however, extends beyond typicality to consider moral standards rooted in aspirations for the community as a whole. Even when such moral standards are ignored by most of a community, it is incumbent upon the courts, as trustees of these higher standards, to hold the community accountable to them.

Avoidance of invidious racial discrimination has achieved the hard-won status of a core value in this nation's social morality. Support for this value can be readily found in sources ranging from constitutional provisions and legislative decrees to newspaper editorials. Accordingly, courts must not allow an attribute like irrational racial bias to figure in the formulation and application of the reasonable-man standard, however widespread that attribute may be. Although in most cases the beliefs and reactions of typical people reflect what may fairly be expected of a particular actor, this is not always true. "Should" must never be confused with "is," no matter how widespread what "is" may be. "Nice Nazis," "gentlemen slavers," and Reasonable Racists--this troika of odious oxymorons--stand as cautionary reminders of the danger of smug complacency in the face of what "is."

Acknowledgments	p. ix
Introduction: "Rational" Discrimination and the Black Tax	p. 1
The "Reasonable Racist": A Slippery Oxymoron	p. 19
How We Know What We Know: The Typical, the Reasonable, and the Accurate	p. 22
Why We Blame Whom We Blame: The Typical, the Reasonable, and the Damnable	p. 27
The "Intelligent Bayesian": Reckoning with Rational Discrimination	p. 35
Why Rational Discrimination Is Not Reasonable	p. 46
Race and the Subversion of Rationality	p. 58
The "Involuntary Negrophobe"	p. 61
The Involuntary Negrophobe and Dueling Conceptions of Law	p. 64
Of Mice and Men: Equal Protection and Unconscious Bias	p. 68
Private Bias and Equal Protection	p. 69
Restructuring the Maze to Serve Justice	p. 77
Blame and Punishment: Narrative, Perspective, Scapegoats, and Demons	p. 81
Framing the Narrative Broadly in Women's Self-Defense Work	p. 83
Narrative, Consent, and Blame	p. 84
The Fundamental Fault Line: Determinism versus Antideterminism	p. 89
"Disadvantaged Social Background"	p. 94
Opponents Grasp at Straws	p. 96
Ideological Agendas	p. 101
Repealing the Black Tax: Breaking the Discrimination Habit	p. 115
Hypocritical Racists and Aversive Racists	p. 118
Proving Ubiquitous Unconscious Bias	p. 130
Combating Unconscious Discrimination in the Courtroom	p. 139
Conclusion	p. 154
Notes	p. 161
Index	p. 201
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Negrophobia and Reasonable Racism : The Hidden Costs of Being Black in America

9780814706701

0814706703

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