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LectureforSept10-122019PartI1.pptA Legal Conundrum
The “Abuse” Excuse
Defenses in which counsel argues that some oppressive condition in a criminal defendant's social environment must be understood in order for the finder of fact to comprehend the defendant's mental state.
Social environment can be raised in any context where the defendant's mental state is relevant: insanity, self-defense, diminished capacity, duress, and extreme emotional disturbance.
A Legal Conundrum
Judges rulings reflect their worldviews, emotional predilections, and other often unconscious cognitive processes. Yet one's worldview often reflects one's group affiliations and social position.
- A judge who is unaware that these factors are at work may consistently undervalue a subordinate group's relevancy arguments because they flow from an alternative worldview.
A Legal Conundrum
Example- John Cheng
John Cheng is a graduate student in philosophy who killed the members of his doctoral thesis committee. Cheng claims that he was insane, or at least extremely emotionally disturbed, at the time of the crime.
Cheng emigrated from Hong Kong a few years ago. He came from an upper middle-class family there, but his family severed all ties when Cheng refused to join the family business.
A Legal Conundrum
Cheng had been an outstanding and privileged student in Hong Kong. But in the United States, he met one disappointment after another. For years, he was unable to get a teaching assistantship ("TA") or office job, finding work only as a bus boy in a Chinese restaurant.
When he finally did get a TA position, he got such poor teaching evaluations that his contract was not renewed. His grades were barely passing.
A Legal Conundrum
He blamed all this on discrimination based on his accent and race.
The rejection of his dissertation was the final straw, and he reacted with violence.
His defense attorney raised a novel defense: linguistic rage. Linguistic rage is rooted in sociolinguistic studies of accent. The studies view "accent" as often not a physical bar to understanding, but an outcome of a social categorization process by which outsider groups are subordinated.
A Legal Conundrum
Real-life example: Gang Lu (University of Iowa)
http://www.youtube.com/watch?v=AmObHl8qAmg
A Legal Conundrum
Accent discrimination thus systematically excludes talented workers from jobs, promotions, and other kinds of recognition for achievement. Yet, after childhood, many adults are physiologically incapable of losing their accents.
Moreover, accents are generally not a bar to understanding by those willing to listen.
Our ways of speaking are central to our social and individual identities, so failed efforts to lose our accents and the resulting ridicule cause great emotional pain.
A Legal Conundrum
Accent and race discrimination are linked. While some Asian-Americans have now achieved visible success in American society, Asian accents activate the worst stereotypes about Asians.
In short, "accent, when it acts in part as a marker of race. takes on special significance.
A Legal Conundrum
The defense also planned to call a psychologist to testify that, as a result of accent discrimination, Cheng suffered from a mental disease or defect, thereby losing the ability to tell right from wrong or to control his impulses, two tests for legal insanity
Cheng also suffered an extreme emotional disturbance, thereby justifying the mitigation of murder to manslaughter.
Question: Should the judge admit such evidence? Is such evidence relevant?
A Legal Conundrum
The notion that social conditions influence criminal behavior is certainly not new; these defenses are consonant with a broad literature documenting the effects of adverse social conditions on the incidence of crime.
These defenses are innovative because they transcend generalized theories of systemic influences and provide more sophisticated and specific articulations of the impact of discrete social toxins on mental health and criminality.
A Legal Conundrum
A cultural defense would allow a defendant to introduce evidence of his native culture to explain his criminal actions. By using the defense, the defendant hopes to have his charges either reduced or thrown out because the act he is accused of either carries a lesser sentence or would not even be considered a crime in his native country.
It is typically argued that "[i]n order to assert [this] defense, the defendant must have been socialized in a distinctly different culture and this foreign culture must encourage, or at least sanction, the behavior which has been deemed illegal in this country.“
Question: Would the “inner city” be an appropriately labeled “distinct culture”? What about Appalachian “hillbillies”? What are the dangers of permitting such defenses to be used?
Arguments for Culture-based Defenses
A. Fairness and the Principles of Individualized Justice
A foundational principle of the criminal justice system in the United States is to secure justice for every individual defendant: "fairness and equality require the 'tailoring of punishment to fit the degree of the defendant's personal culpability.'“
Some scholars have proposed that having an official cultural defense would further the criminal justice system's goals of ensuring individualized justice and assessing moral blameworthiness, enabling courts to better understand the individual defendant's situation.
Additionally, some commentators worry that prosecuting immigrant defendants for crimes stemming from their cultural beliefs "endanger[s] the[ir] . . . individuality and cultural heritage.“ The idea is that "immigrant cultures offer . . . valuable elements to enrich national life generally“ and that "respect for the individual and his personal beliefs is an integral part of human rights."
Arguments for Culture-based Defenses
B. Punishing Those Who Could Use the Cultural Defense Would Fail to Deter.
Many advocates of the cultural defense claim that deterrence, a primary purpose of punishment, would not be eliminated when defendants either have their charges dropped or their sentences reduced through the use of a cultural defense.
First, they argue that the majority of situations in which a cultural defense would be used arise infrequently, with fact patterns that are unlikely to reoccur, thereby rendering the deterrent value of punishment useless.
In addition, in the situations where the culturally related crimes are motivated by a moral or social compulsion, the threat of punishment, no matter how severe, will be ineffective as a deterrent.
Arguments for Culture-based Defenses
C. Instituting a Cultural Defense Would Improve the Accuracy of Cases
Some who support instituting a formal cultural defense believe that it will lead to discovery of a more accurate account of the events that led to the charges being filed.
Those who commit crimes that could be covered by a formal cultural defense often must resort to justifying their actions by using defenses that are currently permitted, even though those defenses may not fit their specific circumstances.
There are some estimates that perhaps as much as 20% of verdicts in battered woman syndrome cases are incorrect? Incorrect verdicts in cases implicating race and culture are higher.
Arguments for Culture-based Defenses
D. Public Policy
Public policy interests may justify acceptance of a stand-alone cultural defense. An official cultural defense is necessary to guarantee that cultural evidence is handled fairly in court.
- One defendant may be allowed to bring in evidence of his cultural background simply because a judge is more open to the defense and willing to slightly bend the rules of evidence while another may not.
The inconsistencies in judges' feelings towards recognizing cultural factors make it impossible, in the present process, for different defendants in similar situations to be treated similarly.
Arguments against Culture-based Defenses
A. Cultural Defenses Promote Stereotypes
Many opponents believe that a cultural defense promotes negative stereotyping of minorities and immigrants because it assumes that the culture of a particular area is easily identifiable and that all people from that area will act similarly.
If it is very difficult to define American culture, it would be almost impossible for our courts to attempt to define the cultures of other countries.
Arguments against Culture-based Defenses
B. Cultural Defenses Undermine the Rights of Women and Children
One of the greatest criticisms against recognizing a formal cultural defense is that women and children (often the victims) suffer in place of the defendants excused by the defense. While American law and society generally respect and value women and children, this is not the case in other countries.
If there was a stand-alone cultural defense available for use by a defendant charged with injuring or killing his wife or children, the cultural defense might work to condone family violence, an action typically condemned by American society.
Examples: “Honor” killings and genital mutilation
Arguments against Culture-based Defenses
C. Implementation of a Bright Line Rule for Cultural Defenses Would be Impossible
Many opponents of establishing a stand-alone cultural defense for use during the trial phase feel there are no bright line rules that can be implemented to ensure that the cultural defenses can be fairly applied.
The legal system would face an impossible task of formulating rules if a formal cultural defense were to be recognized in the trial phase.
The first, and possibly greatest, problem of instituting a cultural defense is determining what constitutes a cultural norm for a certain area or country.
Many scholars believe that there is no uniform definition of a certain culture and that even if one could define a culture at one time, cultures are constantly changing.
Arguments against Culture-based Defenses
Another difficulty stemming from acceptance of a stand-alone cultural defense is that legislatures would be forced to decide whether immigrants should only have the defense available to them for a limited amount of time after arriving in the United States.
Deciding how long to allow the defense for a particular defendant would be arbitrary, but allowing it indefinitely is dangerous because at some point the immigrant will become familiar with American laws but will still be able to use the defense.
Arguments against Culture-based Defenses
D. Potential Balkanization of the Criminal Justice System
Officially adopting a cultural defense for the trial phase is essentially risking the balkanization of criminal law. By this, they mean that minority immigrant defendants would be subject to an entirely different set of laws than all other American non-minority defendants because they would essentially be permitted to use ignorance as an excuse in crimes involving cultural factors.
Allowing the "reasonable person" to be interpreted in a specific cultural way violates the equal protection clause.
Additionally, it adds to the perception that immigrants living in America are still "foreigners" and that they are not included in the definition of an "American."
Arguments against Culture-based Defenses
A potential side affect of this balkanization may be that jury nullification will occur more frequently.
Jury nullification has been defined by one scholar as voting to acquit a defendant despite a belief beyond a reasonable doubt that, based on the proper evidence, the defendant is guilty of the crime with which he is charged.
The risk is that a predominantly non-minority jury may choose not to convict non-immigrant defendants because of potential inequity.
