CHARLES JONES?

THE DEFENCE OF “BLACK RAGE”

Reviewing:

Paul Harris,Black Rage Confronts the Law, New York: NewYork University Press, 304 pp.

In a “post-script” to his book,Black Rage Confronts The Law, based upona book tour, Paul Harris reflects upon some of the complex issues thatpermeate this well-conceived, researched and written book and readerresponses to it.1 First, he explores his burden as an author of such acomplex book, particularly his position as a leftist writer. For example, heobviously agrees with a neighbour, commenting on the need for writing thebook, that “it’s important political work; you have a left voice that needs tobe heard.” This is instructive, for Paul Harris clearly identifies with criticallegal and critical race scholars in the purpose for writing. One of the tenetsof critical race scholars, which Harris fully exploits, is that law is political,a-historical, non-objective and requires interpretation aided by historicaland social scientific analyses. It is a book written not just to inform thereader about how the “black rage” defence has been constructed, but toengage the reader in political activity, to show how lawyers and defendantsmay collaborate in the construction of a criminal defence that displayssociety’s role as agent of certain kinds of crime. He is an author who isconcerned that the reader properly understands the scope and limitationsof this kind of defence and he leads the audience on a factory tour of howit works in practice.

The second observation Harris makes, based upon comments mostfrequently heard on the tour, is that readers had two major concerns: (1)whether the “black rage” defence is an excuse for irresponsibility andcriminal behaviour; and, (2) how such a defence relates to the fear ofcrime. Detractors of criminal defences similar to “black rage” – “batteredwife syndrome,” “rotten social background,”e.g., predicated upon societal

? Associate professor of law, Rutgers University, Newark Law School. J.D., Universityof Illinois 1959; M.P.A., Harvard University 1970.

1 See: 54 Guild Practitioner 183 (1997).

Criminal Law Forum 10: 273–280, 1999.© 1999Kluwer Academic Publishers. Printed in the Netherlands.

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causal factors – reject them as “abuse excuse(s)” because they improperlydepreciate individual responsibility for crime.

Professor Harris begins the book with the response that what thesecritics fear is not crime itself, of which the most economically significant iscorporate and committed by white males, but the more visible street crimethat the media has implanted in the public mind as the terror attributed toAfrican-American and Latino males. Thus, their fear is not that the defencewill exonerate a few undeserving defendants but that the criminal justicesystem will become too lenient with respect to street criminals. His ideaabout individual responsibility is, theoretically, more refined. He acknow-ledges that the criminal law is premised upon Lockean ideas of individualresponsibility, and the preservation of human dignity and autonomy, but,he makes the further significant point that the criminal law also, reluc-tantly, evaluates societal factors in determining the existence or degree ofindividual responsibility for crime.

Citing an article by Richard Delgado on the “rotten social background”defence, Harris writes: “Delgado then asks the essential question withwhich this book concerns itself: Assuming that poverty and racism causecriminal behaviour, then should not that fact mitigate criminal respon-sibility?” He initially answers Delgado’s question by noting that criminaljustice scholars such as H.L.A. Hart have reasoned that since punish-ment is based upon individual responsibility and responsibility is basedupon choice, “where individual choice is absent there is no moral basis topunish” (p. 133).

Thus, criminal law recognizes certain situations in which criminalbehaviour is excused or legally justified. Moreover, the central problemfor criminal defendants raising this defence becomes that of defining forjudge and jury which situations are appropriate for exoneration or reduc-tion of punishment. He further explains that “(t)he black rage defenceraises fundamental issues regarding crime, race, and justice. It forces us tograpple with questions the criminal justice system does not want to hear.Why does a person commit a crime? What is society’s responsibility forshaping the person who commits a crime?” (p. 37).

Thus, while the “black rage” defence has a “liberal vs. critical” politicaldimension, the central problem the book addresses is how social crime-causing factors should be taken into account by the criminal justice systemin evaluating the responsibility of defendants who act under the influenceof particular socially conditioned impulses.

To answer these questions, and to further the political project of instruc-tion on how the defence is to be crafted, the book elaborately interweavescase narratives, criminal law theory and assessments of the factors lawyers

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and juries must confront in entertaining such a defence. First, ProfessorHarris describes what the “black rage” defence is and is not. He is carefulto point out that while white supremacy might breed black rage, the “blackrage” defence is not synonymous with the psychological phenomenon.

Black psychiatrists, Price M. Cobbs and William H. Grier, in theirclassic 1968 study “Black Rage” done as part of the Kerner Commission’sreport on urban rebellions, wrote that black rage is “healthy cultural para-noia” developed by black men as a coping mechanism to deal with constantracial stress. The “black rage” defence, on the other hand, is a legal strategyused in criminal cases. It is not a free-standing defence but a “state-of-mind” defence, a variant of the insanity defence, diminished capacity orself-defence, depending upon a check-list of factors, in which the judgeand jury are asked to understand how the defendant’s environment of racialoppression contributed to his or her crime.

In the last chapter, Harris advises lawyers contemplating utilizing thedefence that their overriding concern, “informing all tactical decisions,”should be the potential for the jury to empathize with the defendant.Eight sets of strategic questions should be considered (p. 274) includ-ing: whether the crime concerns property or violence; whether there isa concrete connection between the crime and the defendant’s personalhistory of racial oppression; whether the personal history of the defendantrelates to his or her personal history in a sympathetic manner; whetherthere are elements of the defendant’s culture, positive or negative, whichcan be explained to a judge or jury as contributing causes of the crime.

Second, Harris notes that while almost all recorded black rage defencesinvolve black male defendants, the defence should be available to femalesand some white males. As examples, he explores the cases of Inez Garcia,a non-African-American female who shot and killed a man who aided hisfriend in raping her; Nick Romano’s case, the fictional hero of WillardMotley’s 1947 novelKnock On Any Door; and real life defendant, JohnZimmerman, a white man who grew up in a white working class, gangdominated environment whose environment, arguably, contributed to hiscriminality. In chapter 11, he excludes defendants motivated by “whiterage” who commit hate crimes. This is presumably why Harris makesno mention in the book of the successful self-defence claim by BernhardGoetz who used excessive, lethal force in repelling what appeared to himto be a robbery attack by four black youths on a New York subway.

To explain the defence, Professor Harris explores several cases wheredefences, which could be characterized as “black rage” utilize the prin-ciples he considers significant. The first such case is the 1846 trial ofWilliam Freeman, a black man with mixed Native American ancestry who

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was charged with the murder of several members of the white Van Nestfamily in Auburn, New York. William Freeman, as Harris develops, hadbeen physically abused as a child. He was wrongfully convicted of horsetheft and served a five-year sentence at Auburn prison for the offense.He left prison with a deranged mind and a strong motive for revenge.He believed, wrongly, that the Van Ness family had been responsible forhis wrongful incarceration, vowed to kill them and did. William Seward,the former governor of New York and an anti-slavery politician, defendedFreeman raising an insanity defence in which he argued that Freeman hadbeen denied the benefits of education by a society whose social condi-tions drove him mad: “[t]hey have made William Freeman what he is, abrute beast; they don’t make anything else of any of our people but brutebeasts.” Seward quoted the trial testimony of John Depuy in his closingargument. Freeman was convicted, his conviction overturned because oftrial errors and he died in prison before questions about his sanity couldfully be resolved.

Next, Professor Harris compares two 1971 cases (Statev. JohnsonandStatev. Robinson), where the defence was appropriately raised, with twocases (United Statesv. Robertson, the 1971 random homicide of a whiteman by a black defendant, and the Long Island railroad killings by ColinFerguson), where the defence, Harris contends, was improper.

On July 15, 1970, black autoworker, James Johnson, entered his placeof work, the Chrysler Corporation’s Eldon Avenue Gear and Axle Plant, inDetroit, Michigan. He carried an M-1 carbine in the pant leg of his overalls,stalked the black foreman who had illegally suspended him earlier thatday, raised the M-1 and shot. As the foreman struggled to rise, Johnsonrepeatedly fired into his body. Then he searched for another foreman whohad insulted him but, unable to locate the second man, entered a roomand began firing until the M-1 ran out of bullets. Two white men, a fore-man and a job setter, lay dead. As Johnson walked out of the plant, twounion stewards approached him. He gave one his empty rifle, then quietlysurrendered. Harris painstakingly details the conditions in Johnson’s back-ground, his early life on a Mississippi plantation, his “engulfing” fear ofdeath, childhood “spells” and hallucinations, and his paranoid fear of beingfired from jobs.

Johnson’s job, at the Eldon plant, involved hot, dirty work under a whiteforeman named Owiesny who called him “nigger” and “boy” and whocontinually racially harassed him. The triggering event, occurring afterseveral co-workers had been injured on the job or laid off, was Owiesny’sdeception leading Johnson to believe that the legitimate vacation Johnson

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had taken was not legitimate but absence from work without leave and thatJohnson had been fired.

Steven Robinson’s case arose six months after Johnson’s. AlthoughRobinson’s crime was attempted bank robbery rather than multiplehomicides, there are important similarities in their profiles. Robinson, anintermittently employed draftsman who workedpro bonoin a San Fran-cisco community school, was fearful that his family would have to go onwelfare when both his wife and daughter became ill and his wife unem-ployed. When Robinson learned from a doctor that his family would needto see a specialist and his wife asked if she could apply for welfare, hisresponse was angry and bitter: “No wife of mine will ever take the whiteman’s handout. . . I can take care of my family; I’m the man of thehouse.”

Harris describes the events leading up to the crime with the narrativepower of Richard Wright’s scene, inNative Son, when Bigger Thomasunconsciously suffocates Mary Dalton as Mary’s blind mother is on theverge of discovering him in the daughter’s room. Harris writes:

He spent the rest of the night at his friend’s apartment thinking about his father, his ownlife in Chicago, his failures in San Francisco. He fell asleep in the early morning. Uponwaking, he got dressed, grabbed a pillowcase and began walking down Fillmore Street. . . He stopped and talked to the hard-core unemployed young black men. . . He passed theold winos and saw the contours of his own future in the faces of all those jobless men.He saw the pawnshop and decided to pawn the derringer to buy some food for Elaine andKamisha. He stood in line, but the pawnshop was crowded and it seemed to be takingforever . . . He left, walked another block, and stood in front of the First Western Bank. . . [t]he bank was empty. Then, as if propelled, he was inside the bank (pp.39–40).

Once inside the bank, where his own account was located, Robinsonproceeded to attempt to rob it with an unloaded 0.22 pistol. One tellerlater testified that Robinson was so slow and inept in his movements thathe seemed to want to get caught.

Professor Harris represented Steven Robinson through the San Fran-cisco law collective with which he was associated. Ken Cockrel and JustinRavitz, radical and experienced criminal defence lawyers, representedJohnson. Although none of the lawyers in the two cases used the words“black rage,” Harris writes that “these trials mark the modern developmentof the black rage defence.” Initially, Robinson rejected Harris’ suggestionto plead insanity, desiring instead to plead guilty as he felt fully responsiblefor the attempted bank robbery. At the plea hearing, however, Robinsoninsisted on pleading guilty because he didn’t believe he could get a fair trialby a California jury not comprised of his peers. The trial judge rejected hisplea and, paradoxically, the defence theory shifted to a form of temporaryinsanity, “transient situational disturbance,” which the defence psychiatristdescribed as a temporary “cracking up” caused by situational stress, a form

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of plea for help. The defence psychiatrist in Johnson’s case diagnosed thedefendant’s homicides as acting under a “schizophrenic reaction, paranoidin type,” or under a temporary delusional system.

Robinson’s jury acquitted him, because, as one initially dissenting jurorexplained, he wouldn’t have done what Robinson did but he could “seehow he felt he was backed up against the wall.” Harris remarked that “atthe moment of that juror’s disclosure, I felt that a foundation had beenbuilt for a defence that broke down racial walls by helping jurors under-stand another person’s life experience.” As under the New York penal law’sprovision of an “extreme emotional distress” defence to reduce murder tomanslaughter, the jury can reduce when they “empathize” with the defend-ant, when they can understand the defendant’s “explanation or excuse” forthe crime by putting themselves, metaphorically, in the defendant’s shoes.

Johnson’s jury found the defendant not guilty by reason of insanity.Harris believes that the most critical factor in producing this result wasthe trial judge’s allowance of a view of the work conditions at the EldonAvenue plant. The jurors saw that co-workers both sympathized with andsupported Johnson. That is, they understood that he had been driven tothe explosion of violence producing the homicides. Jurors commented tothe press, after their verdict, that after seeing the conditions of the cementroom of the plant, “working there would drive anyone crazy.” And “thatman needs help. You know he won’t get it in prison. It’s up to us to helphim.”

Harris argues, persuasively, that the Robertson and Ferguson cases arevery different. In August, 1971, Robertson was injured in a Washington,D.C. poolroom. He returned to the pool hall and shot a man he didn’t knowin the shoulder, then drove his car the wrong way on a one-way street andcrashed into some parked cars. He exited the car, gun in hand, saw a whiteman, Robert Aleshire, standing next to his damaged car, and shot him threetimes at point-blank range. Robertson claimed that shooting a white manwas an act of political revolution.

On December 7, 1993, Colin Ferguson, a thirty-seven year-oldJamaican immigrant of upper middle class origin, boarded a commutertrain going from Manhattan to Long Island. He walked down the aisleof the train, fired his nine-millimetre semi-automatic pistol twenty-fivetimes, killing six people and wounding nineteen. Both Robertson andFerguson blamed white racism for their actions. Both rejected insanitydefences and Ferguson, specifically, rejected the “black rage” defenceand fired the lawyers, the late, brilliant, radical defence lawyer WilliamKuntsler, and his junior partner, Ronald Kuby. Harris concludes that theRobertson case is distinguishable from the James Johnson and Steven

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Robinson cases because there was no community or political support forthat defendant. There were no circumstances of racial oppression, povertyor social adversity bearing specifically upon Robertson’s life which couldbe presented to a jury and invoke their compassion or empathy. Similarly,Harris reasons that a “black rage” defence would have been inappropriatein Colin Ferguson’s case because he came from relatively privileged socio-economic circumstances and a jury would have difficulty finding empathyfor him.

The distinctions Harris draws are persuasive for several reasons. First,he points out that as a free-standing defence, “black rage” must fit into analready existing category of defences that may either justify or excuse thedefendant’s behaviour. He argues that the defences categorized as excuses– insanity, diminished responsibility and provocation – have conceptualand judicially imposed limitations which will rarely support the “blackrage” defence. And, even though “black rage” might be comparable toprovocation in some respects, for example, where a spouse kills uponwitnessing marital infidelity, the failure of the comparison is that courtswill mitigate punishment because the defendant has acted irrationally, notbecause there is any longer a moral point to be made about marital fidelity.

Harris argues that black rage should be considered, most often, in thesame category as justifications – necessity and self-defence – preciselybecause there is a moral point to be made that a black rage defendant willbe acting under the social conditions of racism and poverty which inducelegitimate rage as a response. Society’s failure to deal with the conditionsproducing such rage is a moral point that should be brought home to jurors.It is not madness or insanity to act out of rage, as in Johnson’s and Robin-son’s cases. It may be little more than individual madness that provokedRobertson and Ferguson to their killing deeds. In this sense, Robertson andFerguson had, analogously to Bernhard Goetz, committed “hate” crimesmotivated primarily by their dislike of their victims’ group identity ratherthan crimes which are the outgrowth of adverse social conditions.

The point is well taken and clarifies why Harris rejects a law reviewwriter’s attempt to place a “principled” limitation upon the defence. JuddSneirson, in “Black Rage and the Criminal Law: A Principled Approachto a Polarized Debate,” argued that black rage should be recognized as amental disease but that it should only be allowed as a partial excuse incriminal trials. Harris rejects the idea that the defence should only consti-tute an excuse in favour of the broader approaches developed by ProfessorRichard Delgado in the above-mentioned article and Judge David Bazelonin his dissenting opinion inU.S. v. Alexander2 which would allow the

2 471 F.2d 923 (D.C. Circuit 1973).

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defence to be considered as either an excuse or justification and leave itlargely to a jury’s determination. This resolution is most satisfying becauseit puts before the trier of fact the ultimate question bearing upon criminalresponsibility, whether, in fact, the defendant was capable and, to whatextent, of exercising rational choice. As an overriding matter of principle,it must be insisted that punishment not predicated upon the defendant’sability to choose can be neither fair nor just and the defence ProfessorHarris articulates and promotes forces judges and juries to decide thatfundamental issue on a case by case basis. Moreover, Professor Harris iscorrect in his assertion that the most democratic of American institutions,the jury, is ultimately in the best position to decide the morality and justiceof imposing punishment and the quantity of such punishment in a fair andjust system.