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The document examines the issue of racial bias in the criminal justice system, particularly in the context of jurors' moral judgments about black defendants. It argues that if jurors' assessments of black wrongdoers are racially tainted, leading to harsher evaluations compared to similarly situated white defendants, it can result in a disproportionate number of black convictions that are unreliable indicators of true blameworthiness. The document also discusses the conscious and unconscious tendencies to associate blackness with criminal character, further exacerbating the issue.
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Published at The University of Texas School of Law
ARTICLE
Article
WHERE BIAS LIVES IN THE CRIMINAL LAW AND ITS PROCESSES: HOW JUDGES AND JURORS SOCIALLY CONSTRUCT BLACK CRIMINALS
Jody Armour*
I. Introduction ......................................................................................... 204 II. Denials of Racially Biased Constructions of Black Criminals: Why Paradigms Matter ................................................................................ 205 A. Evidence of Biased Constructions of Black Criminals in Character- Based Approaches to Mens Rea ................................................... 206 B. Concrete Illustration ..................................................................... 208 III. Prevailing Mens Rea Paradigm Ignores Room for Biased Social Construction of Black Criminals ......................................................... 218 IV. The Prevailing Paradigm Limits Room for Biased Social Construction to "Defenses" and "Excuses" .............................................................. 221 V. Anomalies that Eat the Paradigm ........................................................ 224 A. The Negligence Anomaly ............................................................. 225 B. The Recklessness Anomaly .......................................................... 229 VI. How Racial Bias Infects "Factual" or Descriptive Tests of Mens Rea through "Interpretive Construction" .................................................... 232 A. Interpretive Construction and Intent.. ........................................... 232 B. Interpretive Construction and Awareness ..................................... 235 C. Interpretive Construction and Premeditation ................................ 242 VII. Prejudice about Black Character and Mens Rea ............................... 243 VIII. How Mens Rea Bias Can Prevent Detection of Bias by Sentencing Studies ................................................................................................. 251
2018] Where Bias Lives in the Criminal Law and its Processes 205
II. DENIALS OF RACIALLY BIASED CONSTRUCTIONS OF BLACK CRIMINALS: WHY PARADIGMS MATTER
From the standpoint of the prevailing paradigm of mens rea, however, it is wild exaggeration to claim that large numbers of black convictions result from racially-biased moral judgments of black wrongdoers by judges and jurors or that many "Bad Negroes"s are socially constructed in the adjudication process. Those trained in American law schools have learned to think about the mens rea requirement in ways that conceal its central role as a vehicle for factfinders to make frontal moral judgments of wrongdoers. This is why paradigms matter-looking at things through the wrong ones can conceal where racial bias lives in the substantive criminal law and adjudication of just deserts. The concept of a scientific paradigm developed by Thomas Kuhn in The Structure of Scientific Revolutions applies as much to the legal as to the scientific arena. "Paradigm" for Kuhn means a model or theory that explains most or all phenomena within its scope. The power of a paradigm lies in its ability to channel thought, structure perceptions, and define the terms of analyses and debates about a subject; it determines what constitutes "normal science" for an area of inquiry.6 The prevailing paradigm of mens rea in the substantive crimina11aw should be overhauled because it does not adequately serve the most basic function of a sound paradigm-it does not explain many phenomena within its scope. Worse still from a racial justice perspective, like a conceptual cataract, the prevailing paradigm obstructs a clear view of where bias lives both in black letter law and in the processes by which factfinders apply the black letter to blacks. The following analysis will provide a clear picture of how under current law biased moral judgments of a wrongdoer can directly and indirectly determine whether factfinders "find" the necessary mens rea for criminal conviction. Once the conceptual cataract has been removed through this more coherent interpretation of mens rea, a clear and simple truth comes into focus: Bias lives in the mens rea requirement and in how judges and jurors apply it to black wrongdoers.
5 In RANDALL KENNEDY, RACE, CRIME, AND LAW (1997), Professor Kennedy urges blacks to practice a politics of respectability in criminal matters by distinguishing between law-abiding "good Negroes" and criminal "bad Negroes." Kennedy exhOlis good law-abiding blacks to "distinguish sharply between 'good' and 'bad' Negroes" for the sake of safety and racial respectability. His litmus test for "bad Negroes" is criminal wrongdoing. My analysis undermines the normative basis for a politics of respectability in criminal matters, for it shows that many "bad Negroes" are products of racially biased adjudications of blameworthiness-it calls for epistemic humility in our moral judgments of others (especially if they belong to negatively stereotyped groups) and hence for skepticism about any politics rooted in moral distinctions between "good Negroes" and "bad Negroes." "It achieves this in part by establishing pedagogical priorities that teachers use to inculcate in new students the assumptions and frames of reference widely shared by practitioners. In the legal arena, these trained practitioners then fmiher entrench and disseminate the paradigm by having it inform their work as legislators, advocates, and judges, as well as legal commentators and pundits.
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A. EVIDENCE OF BIASED CONSTRUCTIONS OF BLACK CRIMINALS IN CHARACTER-BASED ApPROACHES TO MENS REA
The legal requirement of subjective culpability or mens rea assures that "the punishment fits the blame": In its liability function, the requirement shields morally innocent wrongdoers from any punishment/ and in its grading function the requirement subjects the less culpable to less punishment and the more culpable to more. 8 Because the subjective culpability or "desert" of an offender can be and often is measured by his character, the mens rea requirement often calls on jurors to judge the character of the wrongdoer. In RETHINKING CRIMINAL LAW, George Fletcher points out that "[a]n inference from the wrongful act to the actor's character is essential to a retributive theory of punishment,,9 -that is, a theory under which it is unjust to punish a person who does not deserve punishment and unjust to punish him more than he deserves (and deserts for punishment purposes are measured by subjective culpability). As he more fully states it:
(1) [P]unishing wrongful conduct is just only if punishment is measured by the desert of the offender, (2) the desert of an offender is gauged by his character-i.e., the kind of person he is, (3) and therefore, a judgment about character is essential to the just distribution of punishment. 10
Excuses negate "broad"" mens rea, so excuses, in Fletcher's words, "preclude an inference from the [wrongful] act to the actor's character.,,' Put differently, a wrongdoer makes out an excuse and defeats a finding of mens rea inasmuch as the jury attributes her wrongful act to her situation rather than her character. 13
7 According to the maxim actus non facit reum, nisi mens sit rea or "an unwarrantable act without a vicious will is no crime at all" in Blackstone's translation. 8 For instance, under ordinary mens rea analysis, culpable but unintentional wrongdoers are punished less than culpable but intentional ones because someone who kills a pedestrian accidentally generally deserves less blame than one who kills one on purpose. 9 GEORGE FLETCHER, RETHINKING CRIMINAL LAW 800 (1978). 10 Id. II I recognize that under the prevailing mens rea paradigm, "excuses" are not called mens rea requirements; mens rea under the prevailing paradigm is limited to the aware mental states and negligence. Even traditional scholars (see generally KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS (8th ed. 2007).), however, grant mens rea status to excuses by saying excuses go to "broad" mens rea. I discuss the broad and narrow senses of mens rea and how excuses figure in both senses. See inFo footnotes 89-96 and accompanying text. 12 FLETCHER, supra note 9, at 799. IJ As I discuss below, this character-based approach also explains the role of the "reasonable person" test of mens rea that figures centrally throughout the substantive criminal law, including negligence, recklessness, provocation, extreme emotional disturbance, self-defense, and duress. In sum, attributions and character judgments routinely guide jurors' mens rea judgments about whether wrongdoers cross the threshold from non-criminal mistakes and accidents to criminal killings and whether someone who has crossed into the criminal realm deserves to be blamed and punished more or less.
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significantly reduces the likelihood of negative external attributions by probation officers and significantly increases the likelihood of negative internal attributions, even after adjusting for severity of the presenting offense and the youth's prior involvement in criminal behavior.,,18 In addition, researchers found that to the extent that comi officials attribute black crimes to internal causes and white crimes to external causes, "they may be more likely to view minorities as culpable and prone to committing future crimes.,,19 Thus, differential attributions about the causes of crime by blacks and whites contribute directly to differential evaluations of subjective culpability and dangerousness. 2o Often, if factfinders attribute the prohibited conduct to the defendant's character, they find the necessary mens rea; if, instead, they attribute it to her situation, they do not find the requisite mens rea. Yet, the demonstrable race-based differences in attributions about the causes of crimes imply that in assessing mens rea, fact finders more readily find the requirement met for blacks than for similarly situated whites, for they will more readily attribute a black defendant's commission of the actus reus to his character than they will his similarly situated white counterpart.
B. Concrete Illustration
One arresting implication of this analysis is that criminals-including even murderers-are often socially constructed by fact finders in the adjudication process. 21 For instance, assume a black and a white actor, each of whom intentionally kills another person under similar circumstances and claims provocation. In a common law jurisdiction, the mens rea for murder is "malice"-unlawful killings committed with "malice" are murder and those without are manslaughter. Malice means (among other things) an unprovoked intention to kill; thus, an adequate provocation negates malice. Accordingly, if jurors in such a jurisdiction find that the defendant intentionally killed in the heat of passion, triggered by an adequate provocation, they will find no malice and hence convict him only of manslaughter, but if they do not find an adequate provocation, they will find malice and convict him of the more blameworthy kind of criminal homicide, murder. Under one common approach, the provocation, to be adequate, must
" Jd. at 563-564 (emphasis in original). i9 ld. at 557. 20 Such findings support the anecdotal observation of a California public defender who noted, "If a white person can put together a halfway plausible excuse, people will bend over backward to accommodate that person. It's a feeling 'You've got a nice person screwing up,' as opposed to the feeling that 'this minority person is on track and eventually they're going to end up in state prison.' It's an unfortunate racial stereotype that pervades the system. It's all an unconscious thing." Christopher H. Schmitt, Plea bargaining favors whites as blacks, Hispanics pay price, SAN JOSE MERCURY NEWS, December 8, 1991. 21 Such findings would also reveal why some studies might fail to recognize the existence or full magnitude of such discrimination, for snch studies only compare blacks found guilty of, say, murder with whites found guilty of the same crime. But lost in such a comparison would be that blacks who intentionally kill are more likely to be found to have the mens rea for murder than whites who commit the same act.
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be such as might cause 22 a reasonable or ordinary person in the same situation to ,"lose self-control and act on impulse and without reflection.,, It is here that there is room for biased moral judgments and social construction because it is here that judges and jurors make attributions. As Model Penal Code reporters Jerome Michael and Herbert Wechsler observed:
Provocation ... must be estimated by the probability that [the provocative] circumstances would affect most men in like fashion ..
.. Other things being equal, the greater the provocation, measured in that way, the more ground there is for attributing the intensity of the actor's passions and his lack of self-control on the homicidal occasion to the extraordinary character of the situation in which he was placed rather than to any extraordinary deficiency in his own character?
In other words, in determining whether the accused's intentionally homicidal act constitutes murder or manslaughter, the fact finders must decide whether to attribute that act to external, situational factors or to internal, dispositional ones. Inasmuch as they attribute such an act to his situation, they will find the necessary provocation to negate malice and hence find only the mens rea for manslaughter; inasmuch as they attribute it to his, in the words of one court, "wickedness of heart or cruelty or recklessness of disposition,,,25 -in other words, to his character-they will not find adequate provocation and hence will find malice or murderous mens rea.
22 To be more precise, the provocation must be such as would sorely test an ordinary person's self- control. 2.1 United States v. Roston, 986 F.2d 1287, 1294 (9th Cir. 1993) (Boochever, J., concurring) (citing 9th Cir. Crim. Jury Instr. 8.24C (1992». This does not mean reasonable people kill whenever adequately provoked. "[AJ reasonable person does not kill even when provoked ... " MODEL PENAL CODE § 210.3, cmt. AT 56 (AM. LAW INST. 1980) (citing Glanville Williams, Provocation and the Reasonable Man, 1954 CRIM. L. REV. 740, 742). As Roston further explains, "[tJhis standard does not imply that his actions." Roston, 986 F.2d at 1294 (Boochevcr, J., concurring). 24 Jerome Michael & ]-Ierbeti Wechsler, A Rationale of the Law of Homicide 11,37 COLUM. L. REV. 1261, 1281 (1937) (emphases added). They continue: "While it is true, it is also beside the point, that most men do not kill on even the gravest provocation; the point is that the more strongly they would be moved to kill by circumstances of the SOli which provoked the actor to the homicidal act, and the more difficulty they would experience in resisting the impulse to which he yielded, the less does his succumbing serve to differentiate his character from theirs. But the slighter the provocation, the more basis there is for ascribing the actor's act to an extraordinary susceptibility to intense passion, to an unusual deficiency in those other desires which counteract in most men the desires which impel them to homicidal acts, or to an extraordinary weakness of reason, and consequent inability to bring such desires into play." Id. at 1281-1282 (emphasis added). 25 Maher v. People, 10 Mich. 212, 219 (1862). "[WJithin the principle of all the recognized definitions [of malice aforethought], the homicide must, .... though intentional, be committed under the influence of passion or in heat of blood, produced by an adequate or reasonable provocation, and before a reasonable time has elapsed for the blood to cool and reason to resume its habitual control, and is the result of the temporary excitement, by which the control of reason was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition." Id.
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information about the extent to which other people behave the same way toward the same stimulus as the actor does. If most others also respond to a stimulus in the same way as the actor, then social perceivers will see his behavior as high in consensus and will tend to attribute it to the stimulus or situation. Conversely, if most people do not respond to the stimulus in the same way as the actor, then social perceivers will see his behavior as low in consensus and thus more diagnostic of what kind of person he is-that is, they will tend to make an internal attribution. 3! Thus, the reasonable or ordinary person test, by calling on factfinders to consider consensus information in assessing defendants' subjective culpability, provides a very common legal vehicle for the formation and application of internal or external attributions and explanations by judges and jurors who are adjudicating a wrongdoer's just deserts. Moreover, the Model Penal Code makes it clear that the point of the word "situation" (in phrases like "reasonable person in the actor's situation") is to furnish factfinders with a discretion-laden doctrinal vehicle for excusing those reactions of an actor that can be attributed to his "situation" (and hence do not reveal internal, dispositional defects) and blaming the actor for those reactions that do reveal character defects (because they cannot be attributed to situational pressures). Thus, the Code makes the test for heat of passion whether the defendant acted "under the influence of extreme emotional disturbance for which there is reasonable explanation or excuse," and then directs that the determination of the reasonableness of the explanation or excuse shall be made "from the viewpoint of a person in the actor's situation. ,,32 In clarifying this formulation, the Comments state:
The word "situation" is designedly ambiguous .... There thus will be room for interpretation of the word "situation," and that is precisely the flexibility desired.... In the end, the question is whether the actor's loss of self-control can be understood in terms that arouse sympathy in the ordinary citizen. Section 21 0.3 faces this issue squarely and leaves the ultimate judgment to the ordinary citizen in the function of a juror assigned to resolve the specific
stimulus is the same across time and circumstances. Distinctiveness and consistency information generally will not be available to factfinders in that they would involve admitting into evidence historical facts about the defendant and evidence of prior bad acts, and such evidence is generally (but not always) inadmissible. Harold H. Kelley, The Processes of Causal Attribution, 28 AM. PSYCHOLOGIST 107 (1973). 31 An alternative theory of the kind of information people take into account when making attributions, Edward Jones's and Keith Davis's Correspondent Inference Theory, still finds that social perceivers believe that a person's actions tell us more about him when they depart from the norm than when they are typical or otherwise expected under the circumstances. Edward E. Jones & Keith E. Davis, From Acts to Dispositions: The Attribution Process in Person Perception, 2 ADVANCES IN EXPERIMENTAL SOC, PSYCHOL 220 (1965); see also ELLIOT ARONSON ET AL, SOCIAL PSYCHOLOGY: THE HEART AND THE MIND 176-77 (1994). 32 MODEL PENAL CODE § 2l0J (AM. L. INST., Proposed Official Draft 1962) (emphasis added).
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case? Thus, the Code recognizes the "situation" directive as a flexible standard that draws on the common sense and sympathy of ordinary social perceivers to determine whether to attribute the actor's wrongdoing to his situation and thus partially excuse or to his "moral depravity,,34 (or other character defect) and thus fully blame. Because empathy and sympathy constitute a critical basis of jurors' blameworthiness or mens rea determinations whenever criminal liability turns on the "reasonable person in the situation" test, let's consider the empirical case for widespread anti-black empathy bias that makes jurors less likely to sympathetically identify with them in criminal prosecutions. "Ingroup empathy bias" has a neural basis in the brain that researchers have captured using functional magnetic resonance imaging (FMRI). FMRI measures brain activity by detecting the changes in blood oxygenation and flow that occur in response to neural activity-more active brain areas consume more oxygen and blood flow increases to the active area to meet this increased demand?5 FMRI can produce an activation map or "Neurolmage" displaying which areas of the brain are active during a particular thought, action, or experience. 36 Recent studies in social neuroscience show that "empathy for [another's] pain is supported by neuroanatomical circuits underlying both affective and cogmtlve processes.,,37 These studies reveal distinct neural mechanisms of empathy and altruistic motivation. Specifically, one area of the brain or "neural matrix" (including bilateral anterior insula (AI) and anterior cingulated cortex (ACC)) is thought to support the emotional or affective ingredients of empathy while another area (including parts of medial prefrontal cortex (MPFC)) is thought to underlie cognitive components of empathy, "such as the capacity to take another person's perspective.,,38 According to these
33 MODEL PENAL CODE § 210.3, cmt. at 62-63 (AM. LAW INST. 1980).lt is worth noting the Code's recognition of a link between attributions and sympathy. To the extent that we attribute an actor's misbehavior to her situation, we arc more disposed to sympathize with her: "There but for the grace of God go I" suggests recognition that, because of ordinary human frailty, in the same situation, I, the person passing judgment, might commit the same act; conversely, the more we sympathize, the more disposed we may be to attribute her misbehavior to her situation. (So sympathy could drive attribution or attribution could drive sympathy or sympathy and attribution could be bi-directional and mutually influence each other.) By the same token, to the extent we attribute her misbehavior to her character, we may withhold sympathy, for we may think that we could not possibly commit the same act in the same situation. We see the act not as an expression of ordinmy human frailty but rather as an expression of her extraordinary weakness or depravity. Put differently, to the extent that we sympathize with wrongdoers, it may be possible to feel some sense of solidarity with them despite their plight; but without sympathy we can more readily view them as inalterably different, alien, other. Attribution processes (especially attributional stereotypes) may strongly affect how we define "us" and "them"-whether we opt for a politics of solidarity or a politics of distinction~··in relation to criminals. 34 lei. at 63. As other examples of character defects, the code lists "exceptionally punctilious sense of personal honor" and "abnormally fearful temperament". Ie! at 62. 15 Introduction to FMRI-Nuffield Department of Clinical Neurosciences, UNIVERSITY OF OXFORD, https:llwww.ndcn.ox.ac.uk/divisions/fmrib/what-is-fmrilintroduction-to-fmri (last visited Nov. 24,2017). 36 lei. 37 Vani A. Mathur et a!., Neural Basis of Extraordinmy Empathy and Altruistic Motivation, 51 NEUROIMAGE 1468,1468 (2010). 38 lei.
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Researchers have also used electroencephalography (EEG) to capture White brains spontaneously displaying insensitivity to Blacks and other outgroups. When people are sensitive to the feelings, intentions and needs of others, they "resonate with them by adopting their postures, intonations, and facial expressions, but also their motivational states and emotions.,,47 That is, when someone (the subject) observes another (the object), the object's body actions and facial expressions activate the subject's (observer's) neural networks for the same physical actions and expressions. 48 The observer's neural networks mirror those of the object. In short, observers vicariously participate in the experiences of people they observe by mentally simulating their actions and expressions (going beyond purely mental simulation in many cases and physically mimicking their expressions, gestures, and body postures).49 Such vicarious activation of the observer's neural system for action during perception of others' actions and expressions is called "the perception-action-coupling." According to the "perception-action-model of empathy,,,50 such "perception-action-coupling" or mental simulation of another's actions and expressions is the way the observer's brain understands the other's actions, intentions, and emotions. This perception- action link is made possible by "shared neural networks"-neural mechanisms that allow observers to mirror the actions and emotions of those they observe, "thereby synchronizing the inner states of both individuals.,, These shared neural networks are the basic building blocks of empathy. Research has identified shared neural networks for perception and expenence.^0 f d'IS^ gust,52· pam,^53 touc,h^54 and ~lacia^.^1 expresslOns..^55 The system of neurons making up these shared networks are often called "the mirror- neuron-system.,,56 This mirror-neuron-system enables observers to mentally simulate actions and emotions of others (that is, to experience perception- action-coupling), thereby increasing interpersonal sensitivity and laying the foundation for empathy and social understanding. 57 Accordingly, sensitivity
47 Jennifer N. Gutsell & Michael Inzlicht, Empathy Constrained: Prejudice Predicts Reduced Mental Simulation of Actions During Observation of Outgroups, 41 J. OF EXPERIMENTAL SOC. PSYCHOL. 841,841 (2010). 481d.. 49 Id. at 842. 50/d. at 841. 51 Id. 52 Id .. 53/d.. 541d.. 55 Id. (citing L. Carr et aI., Neural Mechanisms of Empathy in I1umans: A Relay from Neural Systems for Imitation to Limbic Areas, 100 PROC. NAT'L ACAD. SCI. 5497 (2003». 56 Mirror neurons were discovered in area F5 of the rhesus monkey premotor cortex and are visuomotor neurons that discharge in response to the execution or observation of similar action. Giacomo Rizzolatti & Laila Craighero, The Mirror-Neuron System, 27 ANNUAL. REV. NEUROSCIENCE 169, (2004) (citing G. Di Pellegrino et aI., Understanding Motor Events: A Neurophysiological Study, 91 Exp. BRAIN RES. 176 (1992); V. Gallese et aI., Action Recognition in the Premotor Cortex, 119 BRAIN 593 (1996); Giacomo Rizzolatti et aI., Premotor Cortex and the Recognition of Motor Actions, 3 COGNITIVE BRAIN RES. 131 (1996». 57 "Simulating others' actions and expressions elicits the associated autonomic and somatic responses, thereby increasing social sensitivity." Gutsell & Inzlicht, supra note 47.
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or indifference to the actions, thoughts, and feelings of ingroup and outgroup members should be reflected in the shared neural networks that make up the mirror-neuron-system. The disturbing discovery of researchers is that the "mirror-neuron- system" underlying the capacity of observers to mentally simulate the actions, intentions, and emotions of others is biased against Blacks and other outgroupS.58 For instance, while observing others in pain, people show less activity in brain areas associated with the experience of pain when observing ethnic outgroup members in pain than when observing similarly situated ingroup members. 59 An even more basic and general bias against Blacks and other outgroups dwelling within "the mirror-neuron-system" of observers keeps Whites from mentally simulating simple, gross motor responses like those associated with reaching for a glass, picking it up, taking a small sip of water, and then putting the glass back in its place. An observer's ability to mentally mirror another person's gross motor responses IS "the physiological process thought to be at the core of interpersonal sensitivity.,,6o Such a fundamental bias against mentally simulating the actions of members of outgroups, say researchers, "would not only make it difficult to empathize with outgroup members' suffering, but also to understand their actions and intentions.,, EEG has been used to measure mirror neuron activity by recording "mu rhythm suppression" in observers while they passively observe ingroup and outgroup members. The "mu rhythm" is generated by the area of the brain involved in voluntary motor control. Mu rhythm or "mu waves"-waves in the frequency range of 8-13 Hz-attain maximal "amplitude" or "power" when individuals are at rest. 62 Early studies showed that the amplitude of "mu waves" could be suppressed, their power diminished, by execution, observation, or imagination, that is, by a subject's own physical movement or by his observation of others performing actions or by imagined movement. 63 "When mu power decreases during observation of an object other, the subject's motor neurons are active and the subject is presumed to
58 Id. These brain mechanisms are especially biased against disliked outgroups. Id. The idea that observers mirror the actions of ingroup more than outgroup members finds behavioral support in studies showing that people mimic others' expressions, gestures, and body postures with less frequency for outgroup members. Id. at 842. But this behavioral evidence does not give us strong evidence of exactly how such bias in mimicking or resonating with others occurs in the observer's brain. (^59) Id. 6°Id. 61Id. 62 Henri 1. Gastaut & Jacques Bert, EEG Changes During Cinematographic Presentation, 6 ELECTROENCEPHALOGRAPHY & CLINICAL NEUROPHYSIOLOGY, 433, 438 (1954); Deziree Holly Lewis, Mu Suppression, Mirror Neuron Activity, and Empathy (May 2010) (unpublished honors thesis, Texas State University) (on file with Texas Siate University Digital Collections), https:!/digital.library. txstate.edu/bitstream/handlc/l 0877/3223/fulltext. pdf. (,3 These studies showed that mu activity is inversely related to motor cortex activity-less mu activity or power (i.e. more mu suppression) reflects more motor cortex activity while more mu activity (i.e. less mu suppression) reflects less motor cortex activity.
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form and make attributions about, or to sympathetically identify with, wrongdoers:
For convenience, I will use "the reasonable person" test as shorthand for "the reasonable person in the actor's situation" test, but the shorthand should be understood to include both attribution-enabling ingredients. As I show below, the reasonable person test constitutes a core element of many crimes. Hence, it figures pivotally in a wide range of legal directives jurors use to weigh and measure a wrongdoer's blameworthiness.^72 This insight will expose the many and varied opportunities in the substantive criminal law and its processes for the social construction of black criminals: The malleable reasonable person test enables differential juror attributions about the causes of crime by blacks and whites that can lead to differential evaluations of the subjective culpability of blacks and whites not only in provocation cases, where it drives the social construction of black murderers, but across the entire body of substantive criminal law, from criminal negligence to self-defense, where the malleable test drives the biased social construction of black criminals in general. 73 Further, the elastic reasonable person test provides a doctrinal vehicle for jurors to construct criminals in racially biased ways on the basis of ingroup empathy bias. What's more, common approaches to mens rea other than the reasonable person test-approaches that seem more factual and rule-like such as "awareness," "premeditation" and "intent"-can be just as malleable as the reasonable person formulation of the culpability requirement and thus can provide just as much room for the biased social construction of black criminals. Only through radically overhauling the prevailing mens rea paradigm can we shed light on the enormous number of opportunities that exist in criminal trials for jurors' racially biased moral judgments to result in the biased social construction of black criminals.
72 Which is to say that it figures pivotally in jurors' liability and grading judgments. 73 In other settings~~~e.g., negligence, recklessness, putative self-defense, duress-we will see the "reasonable person in the actor's situation" formula does precisely the same attributional work it does with respect to heat of passion, with one exception, namely, in these other settings, if the factfinders attribnte the actor's wrongful actions and reactions to his situation, it results in full rather than pmtial exculpation.
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III. PREVAILING MENS REA PARADIGM IGNORES ROOM FOR BIASED SOCIAL CONSTRUCTION OF BLACK CRIMINALS
Trained under the prevailing mens rea paradigm, many American lawyers think of mens rea as an "aware mental state"-like "purpose," "knowledge" or "conscious disregard"-that must accompany the prohibited act or actus reus; in other words, it refers to an actor's subjective awareness of wrongdoing. 74 One cannot choose to do wrong if he lacks awareness of wrongdoing and choice is the bedrock of personal and criminal responsibility for many courts 75 and commentators. 76 Under this familiar approach, mens rea is a "descriptive" requirement because it IS "descriptive"n of-that is, it describes-an aware mental state. 78
74 Mentalism rests on an approach to personal responsibility known as choice theory. Awareness is a necessmy condition of responsibility under this theOlY because only if an individual is aware of engaging in prohibited conduct can we regard it as being a choice of his or an expression of his will. Thus choice theory is sometimes related to Kant's view of the "will" as the locus of moral wOlth' and proper object of moral criticism. R. A. Duff, Choice, Character, and Criminal Liability, 12 LAW & PHIL., 345,346 (1993). For Kant, whether my "will" accords with moral law alone determines the moral worth of my action; such "inclinations" -·desires, aversions, etc. --·as may help to motivate it are not relevant to the moral appraisal of my action. Id. Early in the career of this approach to responsibility, therefore, we see an effort to separate the choosing agency-the will-from those desires and aversions that may motivate choice. As we shall see, efforts to disembody the "choosing self' continue to inform modern choice theOlY. The important point for present purposes is that for choice theorists, an invasion or excessive imperiling of a protected interest can be properly imputed to a person if, but only if, that invasion or excessive risk creation represents an expression of her will or she chooses it. But if she lacks awareness that her conduct invades or unduly threatens a protected interest, the invasion or excessive risk creation cannot be said to express her will or to be chosen by her. Note that to choose to invade or excessively endanger a protected interest, she need not subjectively desire the invasion or act with the purpose of doing so. It is enough that she was aware that her conduct would invade or unduly jeopardize such an interest and that she chose to act or voluntarily proceeded to act as she did. (Such unintended but aware conduct can be said to be an expression of the will in the sense that it manifests a willingness (or preparedness) to cause a certain consequence or bring about a certain state of affairs.) 75 E.g., Morissette v. United States, 342 U.S. 246, 250 (1952) ("The contention that an injUly can amount to a crime only when inflicted by intention is no provincial or transient notion. It is as universal and persistent in mature systems of law as belief in freedom of the human will and a consequent ability and duty of the normal individual to choose bctween good and evil. ").. 76 E.g., SANFORD H. KADISH & STEPHEN 1. SCHULHOFER, CRIMINAL LAW AND ITS PROCESSES: CASES AND MATERIALS 203 (7th ed. 2001) (emphasis added): "The vicious will [in Blackstone's translation of actus non facit reum, nisi mens sit rea) was the mens rea; essentially it refers to the blameworthiness entailed in choosing to commit a criminal wrong. One way the requirement of mens rea may be rationalized is on the common sense view of justice that blame and punishment are inappropriate and unjust in the absence of choice." See also H. L. A. IIAlrr, PUNISHMENT AND RESPONSIBILITY 28 (1968). Because negligent actors lack awareness of wrongdoing and hence cannot be said to choose their wrongdoing, some staunch Choice Theorists rcfuse to recognize negligence as a form of mens rea. Professor Glanville Williams wrotc: "The retributivc theory of punishment is open to many objections, which are of even greater force when applied to inadvertent negligence than in crimes requiring mens rea." GLANVILLE WILLIAMS, CRIMINAL LAW: THE GENERAL PART 122 (2d ed. 1961) (emphasis added). Larry Alexander argues that "negligence as inadvertent risk-taking is not culpable conduct" and hence is indistinguishable from strict liability. Larry Alexander, Inslifjicient Concern: A Unified Conception of Criminal Culpability, 88 CAL. L. REV. 931,949-952 (2000). 77 Martin R. Gardner, The Mens Rea Enigma: Observations of the Role of Motive in the Criminal Law Past and Present 1993 Utah L. Rev. 635, 668 (1993). 78 Or lack thereof in cases of negligent inadvertence, which some commentators do not view as legitimate forms of mens rea. See, e.g., Alexander, supra note 76, at 949-952; WILLIAMS, supra note 76 at 122. In the words of Williams, "With the best will in the world, we all of us at some times in our lives make negligent mistakes. It is hard to see how justice (as distinct from some utilitarian reason) requires mistakes to be punished." WILLIAMS, supra note 76, at 122.
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In this respect, the distinction between descriptive standards of mens rea like "purpose," "knowledge," and "aware mental states" and normative ones like "depraved and malignant heart" tracks the more familiar one between rules and standards. In the words of Kathleen Sullivan:
[L]egal directives take different forms that vary in the relative discretion they afford the decision maker. These forms can be classified as either 'rules' or 'standards' to signify where they fall on the continuum of discretion. Rules, once formulated, afford decision makers less discretion than do standards .... A legal directive is 'rule' -like when it binds a decision maker to respond in a determinate way to the presence of delimited triggering facts .... A legal directive is 'standard' -like when it tends to collapse decisionmaking back into the direct application of the background principle or policy to a fact situation. 82
From this perspective, inasmuch as the mens rea requirement binds fact finders to focus only on the "facts" of aware mental states, it is "rule"- like and descriptive; conversely, inasmuch as it frees them to exercise discretion in morally judging the defendant's subjective culpability, it is "standard"-like, nondescriptive,83 and normative. If indeed the mens rea requirement is descriptive and "rule"-like 84 and concerned only with aware mental states, as proponents of the prevailing paradigm assert, then there is much less room in the criminal law and its processes for the biased social construction of criminals through racially- biased moral judgments. Bias in the social construction of black criminals thrives on juror discretion, which is greatest when fact finders are asked to make direct moral judgments on the basis of nondescriptive standards that
82 Kathleen M. Sullivan, Foreword: The Justices of Rules and Standards, 106 HARV. L. REV. 22, 57-58 (footnotes omitted). X3 The WOlTY that more nondescriptive directives may redound to the detriment of socially marginalized groups finds support in rccent research on different tests for heat of passion. Under traditional common law and pre-Model Penal Code statutes, courts developed quite descriptive mles on what constituted adequate provocation to reduce murder to voluntary manslaughter. An intentional killing was reduced to manslaughter "almost as a matter of law" once certain facts were found-namely, if the ultimate victim provoked 'the defendant with battelY, mutual combat, a serious crime against a close relative, illegal arrest, or adultery. A triable issue of fact on "heat of passion" could not be raised unless these facts were established. Many courts have moved toward a more non descriptive regime by departing from the categorical approach in favor of a more subjective approach to the defendant's claims. The Model Penal Code has taken the most nondescriptive approach to provocation, allowing a reduction to manslaughter when the actor killed under "extreme mental or emotional disturbance for which there is reasonable explanation or excuse .... determined from the viewpoint of a person in the actor's situation." MODEL PENAL CODE § 210.3(1)(b) (AM. L. INST., Proposed Official Draft 1962). Professor Nourse found that in jurisdictions employing nondescriptive approaches, a significant number of cases got to juries involving women who were killed for simply rejecting or hying to separate from the killer without any evidence of infidelity or violence. No such cases got to juries in descriptive jurisdictions, Moreover, cases involving so-called "infidelity" after the relationship had ended were far more likely to reach juries in nondescriptive than descriptive jurisdictions. Victoria Nourse, Passion's Progress: Modern Law Reform and the Provocation Defense, I 06 YALE L. J. 1331 (1997). 84 That is, if it merely directs factfinders to ascertain whether an aware mental state accompanied the wrongdoer's prohibited conduct.
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are flexible and open-ended. Such discretion-laden and open-ended normative standards give maximum elbow room to conscious and unconscious bias. 85 But insofar as mens rea is no more than an aware mental state, it may be viewed as an empirical fact whose existence fact finders can ascertain without making any moral judgment, as they can ascertain a person's blood pressure, pulse, or, with the right equipment, the electroencephalographic oscillations of his brain. 86 This very narrow conception of mens rea leaves jurors and judges few doctrinal opportunities to socially construct black criminals through biased moral judgments based on "ingroup empathy biases" or "race-based attributions" or other distortions entrenched in our cognitive unconscious. 87
IV. THE PREVAILING PARADIGM LIMITS ROOM FOR BIASED SOCIAL CONSTRUCTION TO "DEFENSES" AND "EXCUSES"
Proponents of the dominant mens rea paradigm acknowledge that, in limited situations, factfinders must weigh the reasons for a defendant's wrongdoing and so must make a moral judgment about his subjective culpability. Thus, once jurors determine that a defendant has committed a prohibited act with mens rea, he may still escape liability by raising a "mens rea defense" of justification or excuse. In the words of Paul Robinson and Jane Grall:
[MJens rea describes only a subjective state of mind required by the definition of an offense. One who has the necessary mens rea may nonetheless be blameless because of a general defense, such as insanity, self-defense, or duress, that precludes moral culpability. By adopting a narrow concept of mens rea, which refers only to elements of an offense definition, one does not necessarily reject a normative view of criminal liability. 88
This approach regards substantive "defenses" as either "excuses" (e.g., duress, provocation, extreme emotional disturbance, putative or mistaken
85 Inquiring only into a wrongdoer's aware mental states would not require factfinders to make any kind of moral judgments or diagnostic assessments of motives and reasons for the wrongdoing 86 As brain imaging technology grows more sophisticated, "aware mental states" may someday be photographable by, say, skullcaps outfitted with newfangled EEGs and MRIs. Certain neural patterns associated with cognition and affect could at least provide strong evidence of the actor's consciousness of a risk or circumstance. " Accordingly, this traditional paradigm cannot recognize or acknowledge the enormous role racial and other social bias plays in the legal and social construction of black criminals. Because this impoverished mens rea paradigm conceals where bias lives in jury instructions and the adjudication process, its inadequacies must be exposed so that it can be replaced with one more up to the task of explaining the many opportunities there are in the substantive criminal law and its processes for judges and jurors to socially construct criminals in racially biased ways. 8S Paul H. Robinson & Jane A. Grall, Element AnalysiS in Defining Criminal Liability: The Model Penal Code and Beyond, 35 STAN. L. REV. 681, 686 n.21 (1983) (emphasis added).
