Black rage and the criminal law: a principled approach to a polarized debate.

• Author: Sneirson, Judd F.

INTRODUCTION

Tragedy struck the Long Island Railroad on December 7, 1993, as the 5:33 to Hicksville left the New York City limits.(1) Methodically, as if collecting train tickets, Colin Ferguson passed down the aisle of the third car of the train, steadily shooting to his right and then to his left, until he emptied two fifteen-bullet clips into twenty-five defenseless Long Island commuters.(2) Handwritten notes in Ferguson's pockets explained his actions as a venting of the rage he--a black man--felt toward "everyone from Gov[ernor] Mario M. Cuomo to the state Workers' Compensation Board to Asians, whites, and `Uncle Tom Negroes.'"(3) Months later, the racial stress, anxiety, and anger evidenced in these notes would provide the foundation for Ferguson's legal defense: a new twist on the traditional insanity defense called the "black rage" defense.(4)

According to Ferguson's former defense attorneys,(5) American society's pervasive and destructive racism gradually kindled and fueled a smoldering rage that operated as a catalyst to push their already mentally unstable client over the edge into insanity.(6) This seemingly novel argument is not without legal or psychiatric precedent. In 1846, a New York appellate court embraced a similar argument, finding a man insane as a result of the brutality he suffered as a black man in upstate New York.(7) The seminal sociological and psychiatric study Black Rage also propounds this argument, devoting an entire chapter to mental conditions arising from the constant racial stress many black Americans experience.(8) Drawing upon these and other sources, Ferguson's attorneys intended to persuade the jury that their client should not be held accountable for his actions on the ill-fated train car.(9)

As might be expected, the prospect of a black rage defense has drawn both criticism and praise. Many find the defense demeaning to blacks, exhuming "ancient stereotypes of the 'crazy nigger,' childlike primitive, straight out of D.W. Griffith's Birth of a Nation, unable to control his hot-blooded tropical lusts."(10) Indeed, depictions of the black race as susceptible to uncontrollable rage and prone to violence may inadvertendy justify white fear of blacks and thus further racist attitudes.(11) Although a majority of Americans express a general distaste for attempts to excuse criminal conduct by portraying the defendant as a victim, others find the black rage defense "compelling."(12) They celebrate the defense as a political legitimization of aggressive responses to racial oppression, noting that the appropriate flip side to black rage is white guilt and fear.(13)

In addition to touching upon highly political and sensitive issues like race and crime, this widely publicized defense typifies an increasingly popular trend in the criminal law whereby the perpetrator of a crime depicts himself(14) as a victim in order to escape criminal responsibility." These victimization defenses--drawing upon a self-defense theory to justify criminal behavior(16) or drawing upon an insanity theory to excuse criminal behavior(17)--range from the widely accepted to the highly laughable and seem to accommodate any set of circumstances.(18) Consequently, victimization defenses like the black rage defense have the dangerous potential to "weaken traditional beliefs about personal responsibility, increase lawlessness by creating a license for vigilante violence, and `undercut the credibility of legitimate defenses in appropriate cases.'"(19)

This Comment analyzes how black rage fits into the existing criminal law and suggests that its introduction produces a troubling result. Part I discusses the psychiatric and sociological underpinnings of black rage and explores possible roles for a black rage defense in the criminal law. Part II argues that the black rage defense fits neatly into the family of insanity defenses, applies the requirements of the several insanity tests to black rage, and compares black rage to similar mental conditions that commonly pass these tests. Part II then argues that black rage also fits into a diminished capacity role, meeting the requirements of the Model Penal Code test for mitigating murder to voluntary manslaughter. Part III analyzes these results under both utilitarian and retributivist lenses, suggesting that black rage differs from legally recognized varieties of insanity in important respects. Part III then balances the competing interests of the two penal theories and proposes an acceptable solution.

1. BLACK RAGE AND THE BLACK RAGE DEFENSE(20)

   1. The Psychiatric and Sociological Basis for Blackrage

      Black rage describes a mental disturbance caused by long-term exposure to societal racism. Psychiatrists William H. Grier and Price M. Cobbs first formally advanced the notion of a mental condition defined by black rage in 1968.(21) Grier and Cobbs wrote that blacks in America must develop a "healthy' cultural paranoia" as a coping mechanism to deal with constant racial stress:

      [I]t is necessary for a black man in America to develop a profound distrust of his white fellow citizens and of the nation.... If he does not so protect himself, he will live a life of such pain and shock as to find life itself unbearable. For his own survival, then, he must develop a cultural paranoia in which every white man is a potential enemy unless proved otherwise and every social system is set against him unless he personally finds out differently.(22)

      In coping with this racial stress, blacks must continually endure subtle racism such as being passed up by cabs or being taken as shoplifters in stores.(23) These subtle insults send a recurring message that blacks are inferior, fueling a resentment within the black psyche that can cause depression, grief, and rage.(24) Consequently, Grier and Cobbs foretold, "As a sapling bent low stores energy for a violent backswing, blacks bent double by oppression have stored energy which will be released in the form of rage--black rage, apocalyptic and final."(25)

      Unlike the America that causes black rage, the black rage phenomenon does not discriminate by class. Indeed, well-to-do blacks are not immune from black rage: they may continue to harbor "deep-seated anger, frustration, and isolation ... despite ... outward trappings of success."(26) In addition to the stress of constant discrimination, successful blacks may face corporate glass ceilings designed to prevent black promotions; 'continued exclusion from the old-boy network[s]; ... problems coping with [their] own cultural and racial identity; ... [and] the realization that the next generation of blacks will probably have to deal with the same issues of racism and exclusion from society.(27) These additional stressors operate to fuel further the class-blind condition called black rage.

      This formal psychiatric and sociological recognition of black rage only confirms what black writers have been expressing for years. In novels like Richard Wright's Native Son(28) and plays like LeRoi Jones's Dutchman,(29) black literature has dramatically depicted the phenomenon. For example, frustrated by the attractive but off-limits white world of urban Chicago, Native Son's Bigger Thomas describes his pent-up feelings:

      Every time I think about [the disparity between blacks and whites]

      I feel like somebody's poking a red-hot iron down my throat....

      We live here and they live there. We black and they white. They

      got things and we ain't. They do things and we can't. It's just like

      living in jail.

      ... Sometimes I feel like something awful's going to happen

      to me... Naw; it ain't like something going to happen to me....

      It's like I was going to do something I can't help.(30)

      Similarly, after being called "Uncle Tom Big Lip," Dutchman's Clay Williams reveals his more middle-class rage:

      If I'm a middle-class fake white man.... Let me be who I feel like

      being. Uncle Tom. Thomas. Whoever. It's none of your

      business. You don't know anything except what's there for you to

      see. An act. Lies. Device.... And I sit here, in this buttoned-up

      suit, to keep myself from cutting all your throats.(31)

      Like the psychiatrists and sociologists, literature often locates

      the cause of black rage in white discrimination and oppression:

      The white neighbor decided to limit the amount of education his

      black neighbor could receive; decided to keep him off the police

      force and out of the local national guards; to segregate him

      residentially; to Jim Crow him in public places; to restrict his

      participation in the professions and jobs; and to build up a vast,

      dense ideology of racial superiority that would justify any act of

      violence taken against him to defend white dominance; and

      further, to condition him to hope for little and to receive that little

      without rebelling ....

      . . . [This] oppression spawned among [blacks] a myriad variety

      of reactions, reaching from outright blind rebellion to a sweet,

      other-worldly submissiveness.(32)

   2. Fitting Black Rage into the Criminal Law

      In fitting black rage into the criminal law, one must consider the philosophies driving traditional notions of crime and punishment and the resulting rationales for exculpating certain actors. This Section meets both challenges, setting the stage for a discussion of specific roles available in the criminal law for a black rage defense.

      1. Utilitarianism, Retributivism, and Free Will

         Utilitarianism and retributivism constitute the two major penal theories driving traditional notions of crime and punishment.33 Under the utilitarian theory, the "purpose of all laws is to maximize the net happiness of society."(34) Accordingly, utilitarians justify punishment only insofar as "it promises to exclude some greater evil."(35) Thus, in application, utilitarians believe in general deterrence--punishing wrongdoers so that other potential wrongdoers will forego future criminal conduct; specific deterrence--punishing wrongdoers so that they will forego future criminal conduct...