Culture as justification, not excuse.

• Author: Chiu, Elaine M.

ABSTRACT

The wide discussion of cultural defenses over the last twenty years has produced very little actual change in the criminal law. This Article urges a reorientation of our approach thus far to cultural defenses and aspires to move the languishing discussion to a more productive place. The new perspective it proposes is justification. The Article asks the criminal law to make doctrinal room for defendants to argue that their allegedly criminal acts are justified acts, and not excused acts, based on the values and norms of their minority cultures.

Currently, the criminal law deals with such acts of minority defendants through the excuse approach. It begins by relying excessively on the individual discretion of judges, prosecutors and law enforcement officials to achieve just results in such cases. When discretion fails, the status quo then employs the legal fiction of ill-fitting excuse defenses like temporary insanity and extreme emotional disturbance. The troubling message of the current approach is that minority defendants commit wrongful acts but are not blameworthy because they suffer from the defect or disability of their culture.

The proposal of the Article is to replace this current excuse approach with a justification approach. In Part II, it explains the theoretical distinctions that separate excuse from justification and offers some elements and limits to a justification defense. It even describes some available doctrinal vehicles through which the criminal law can adopt the justification approach.

In Part III, the Article applies the justification approach to three famous cultural defense cases. It uses the cases to make a powerful comparison of the relative weaknesses and strengths of the excuse approach and the justification approach. Adopting justification will eliminate the use of legal fictions, will force the criminal law to directly confront the difficult moral questions posed by such cases and will advance the cause of cultural pluralism in the criminal law.

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[I]f respect for an individual also requires respect for the culture in which his identity has been formed, and if that respect is demanded in the uncompromising and non-negotiable way in which respect for rights is demanded, then the task may become very difficult indeed, particularly in circumstances where different individuals in the same society have formed their identities in different cultures.

--Jeremy Waldron (1)

1. INTRODUCTION

   Consider the following true stories:

   People v. Kimura

   Fumiko Kimura lived with her husband and two young children in the Los Angeles area. (2) In November 1984, her husband confessed that he had been supporting a mistress for several years of their marriage. The mistress was a waitress at the same restaurant where he worked. (3) Extremely upset by the news, Fumiko Kimura tried along with her husband and the mistress to find a resolution for their sticky love triangle. They failed. On January 29, 1985, Fumiko decided to take matters into her own hands and walked into the Pacific Ocean while holding both her children in an attempt to commit parent-child suicide. (4) Onlookers at the beach managed to pull Fumiko and her two children from the water. (5) Only Fumiko survived. (6)

   People v. Aphaylath

   A Laotian refugee, May Aphaylath had been living in the United States for two years when he married his wife. (7) One month into the marriage, his wife continued to accept phone calls from her former boyfriend and to display affection for this other man. (8) Her behavior brought shame upon May Aphaylath and his family. When she received yet another phone call from her former boyfriend, May repeatedly stabbed his new bride to death. (9)

   State v. Butler

   Gary Butler, Dino Butler and Robert Van Pelt were Native Americans who belonged to the Siletz tribe and lived in the Portland, Oregon area. (10) They also belonged to a politically active organization known as the American Indian Movement. They began to hear from fellow tribe members that artifacts buried in the graves of dead relatives had been appearing for sale at local antique shops. (11) For many years one of the names circulated as a graverobber of valuable objects from Siletz burial grounds was Donald Pier. (12) On January 21, 1981, these three men went to Donald Pier's home where they smashed his fingers in order to get him to confess to robbing Siletz graves and then cut his throat. (13) They believed that killing the grave-robber restored the spirits of their ancestors. (14)

   Two similarities amongst these stories are obvious. First, they all concerned the use of deadly physical force and second, they all ended in the deaths of human beings. These commonalities are easy to identify because the use of deadly force and the resulting harm of death constitute the physical aspects or the actus reus (15) of the homicides.

   What about the mental aspects or the mens rea (16) of these actors? Are there also similarities there? All of the defendants exhibited an intent to kill in that they each desired the demise of their victims. In common law jurisdictions, such a mental state is known as an express intent to kill. (17) In the Model Penal Code, a conscious objective to cause death is part of the definition of the mens rea, "purposely." (18)

   More interestingly, in addition to their intent to kill, all the defendants also shared one additional mental state. They all had that object to kill because they all believed that their act of killing was right or justified. In other words, all the defendants had righteous motives. Although the criminal law usually regards the presence of motive generally or of any particular motive as unimportant, (19) there are some notable exceptions to the usual disregard. Prominent among these exceptions are the justification defenses that exist to the crimes of murder, manslaughter or assault. (20)

   A deeper examination of this last similarity reveals the factual differences among the stories. Although they all entertained good faith, subjective beliefs in the righteousness of their acts of homicide, they did not share the same exact motive. Each of them had a different substantive reason for doing what they did. For example, May Aphaylath killed his wife to restore his family honor while Fumiko Kimura killed her children to prevent them from being motherless, assuming she had been successful in her own suicide attempt. The Siletz Indians vindicated the spirits of their ancestors by killing Donald Pier.

   Despite the different substance of their motives, the criminal law responds to their claims of righteousness with a singular reaction. Because their claims reflect the values and norms of minority cultures, and not the dominant Anglo-American culture, the criminal law ignores them. The defendants in all three homicides are silenced from telling their stories of righteousness. Instead, they are left to rely on an ill-fitting excuse defense or the discretion of a prosecutor as defense strategies for escaping criminal liability. This Article explores the puzzle posed to the criminal law by these defendants--those who commit harmful acts believing in their righteousness but whose beliefs are grounded in the norms of minority cultures.

   Discussion of this puzzle began in earnest twenty years ago when Fumiko Kimura tragically drowned her two children. (21) A year after their deaths, the Harvard Law Review published an oft-cited note, The Cultural Defense in the Criminal Law, (22) which passionately urged the adoption of a new cultural defense to achieve the twin goals of cultural pluralism and individualized justice. (23) Since that time, scholars of criminal law as well as the social sciences have engaged in a vigorous debate about the merits and implications of a cultural defense. Several positions have been staked. The main dividing line is between those who support and those who oppose a new cultural defense. (24) Within the group of supporters, there is further disagreement over whether the cultural defense should be a new and independent defense or whether cultural evidence should merely be included within already existent defenses. (25) In addition, many have suggested a myriad of limitations and restrictions on an independent defense or on the admission of cultural evidence. (26)

   Despite all this study and discussion, not much has actually changed in how the criminal law handles these cases in the last twenty years. Although there may be increased awareness about the problem of culture and the criminal law, the treatment of minority cultural norms has largely remained the same since the case of Fumiko Kimura. Minority cultures and their norms have yet to be the foundation of a new and independent defense and are often relegated to being a factor in discretionary plea bargaining or sentencing. Indeed, more often than not minority cultures and their norms are still considered irrelevant to substantive determinations of liability. In the few instances where minority cultures have been formally included, they ironically have served as evidence proving or disproving longstanding, well-established criminal doctrines based on the dominant Anglo-American culture.

   The results for defendants have been spotty and inconsistent as the ability to secure acquittals on the basis of culture or to offer cultural evidence at their trials has varied wildly. Indeed, such results have led Professor Cynthia Lee to ask whether there is a rational explanation for why culture seems to work for a few criminal defendants and not for many others. (27) The explanation is that culture has succeeded in achieving justice for a few defendants whose moral choices happen to fit well within existing criminal legal doctrine; for the many defendants whose moral choices lie outside existing doctrine, their minority culture has been ignored or masked and sheer luck has determined whether they achieved a fitting result.

   This Article aspires to move...