Cultural and Other Defenses

“Rotten Social Background” &

“Television Intoxication”

Cultural Defenses• What is a cultural defense under the

law?– Cultural defenses attempt to persuade decision-makers that

some element beyond the defendant’s control contributed to the commission of the crime

• Where has it been used?– Immigrant Rape and Murder Cases– “Black Rage” Cases

• What is the proper role of such defenses?– Excuse?– Justification?– Mitigation?

Interest Convergence Theory and the Cultural Defense

Cynthia Lee – Professor of Law at George Washington University Law School

• What is Cultural Defense?– The proffer of cultural evidence by a criminal defendant,

usually an immigrant or racial minority, seeking to mitigate a charge or sentence

• The Debate – Sometimes judges admit cultural evidence, and sometimes they do not, whether the evidence SHOULD be allowed is a hotly contested issue

Advocates

• U.S is multicultural and should be permissive of evidence that shows how backgrounds may have contributed to actions

• Non minorities already have an advantage in the courtroom

Opponents

• Defense can further harm the victim of cultural violence – often women and children

• Equal Protection Violation – favors immigrants and minorities over members of majority class

Interest Convergence Theory and the Cultural Defense (cont.)

• Failures– “When in Rome”

– “Cultural Cognition”

• How Interest Convergence Helps– Better Prediction: Pattern observed that

immigrant/minority defendants most likely to succeed with defense when interests match those of the majority

– Borrows from Derrick Bell’s interest convergence theory to explain the success

• “the idea that the interests of blacks in achieving racial equality will be accommodated only when it converges with the interests of whites”

• Successful Uses of Cultural Defenses– 3 prototypical cases

Asian Immigrant Men Who Kill Their Asian Immigrant Wives

• Many Asian immigrant men who have killed their Asian immigrant wives have successfully used a cultural defense

• Husband charged with second degree murder for killing his wife by striking her eight times with a claw hammer after she confessed to adultery

• Violent reaction wasn’t unusual given his background but usually the community stops him from following through – because in America this safeguard was not in place

• The reason behind this success may have been because his claim was familiar and resonated with the jury

Hmong men who “marry by capture”

• Hmong man charged with rape claimed he thought the forced sex with a woman he took from her dormitory room was consensual given the Hmong cultural practice of marriage-by-capture

• Prosecution allowed for a plea-bargain to a lesser offense

• May have appeared prosecution was receptive of cultural defense but plea-bargaining is common, particularly in date-rape cases which are usually “he-said/she said”

“Black Rage”• The “black rage” angle is a more difficult case – hard to see converging

interests in acquitting a black man of a crime against a white man using a race based deviance defense

• Nevertheless, following the acquittal of the officers charged in the Rodney King beating, riots erupted in South Central Los Angeles. There was a case where a white man drove his truck into an intersection where an angry crowd had gathered, and they pulled him from his truck and beat him.

• Defendant’s attorney’s didn’t deny the beating but said that they lacked specific intent due to Black rage and “mob contagion”

• Lee explains it as dependence on a stereotype pervasive among whites that blacks are prone to be deviant criminals. – “black rage” and “mob contagion” fit with idea that jury believed that the

two young black men could not help acting the way they did.

Bottom Line

In all three cases, acceptance of the immigrant or minority defendant’s claim reinforces negative stereotypes about the racial or ethnic group to which they belong. The ends achieved had interests matching those of the majority.

What is the Causal Story?What type of picture of causation are we trying to

forward with the cultural defense?• Defendants grew up in a culture from which the rules

don’t translate? • Too insulated from legal/social norms to internalize? • Competition between traditional and new legal norms

that somehow sets up conflict?• Limitation on rationality?

Problems with Using Interest Convergence as a Causal Theory

• Testifiability/Falsifiability

United States v. Alexander and Murdock(United States District Court of Appeals, District of Columbia Circuit, 1972)

Facts:• 5 White Marines and their woman friend entered a

restaurant where the 2 Black defendants were dining. The two groups exchanged stares, leading to racial insults directed at defendants. Defendants fired their weapons at the Marines.

• 2 Marines were killed, the woman friend and one other Marine were injured

• Murdock was convicted of 2nd degree murder – despite his insanity defense

• Alexander was found guilty of assault with a deadly weapon

Case Study

IssuesAmong the issues raised on appeal was Murdock’s claim that the

jury instructions prejudiced his insanity defenseInstructions given to Jury:

“We are not concerned with a question of whether or not a man had a rotten social background. We are concerned with the question of his criminal responsibility. That is to say, whether he had an abnormal condition of the mind that affected his emotional and behavioral processes at the time of the offense.”

Murdock’s Defense• The environment in which he was raised conditioned him to respond to certain stimuli in ways that most would consider “flagrantly inappropriate”

• This conditioning denied him of meaningful choice in the way he responded to the racial insult

• Asks the jury to conclude that this “rotten social background” coupled with the impairment of mental or emotional processes and behavior controls be treated as causing his violent outburst in the same way that the behavior of a paranoid schizophrenic is controlled by his mental condition

The Court’s Analysis• Never established that exculpatory mental illnesses must be

organic or pathological – nor has psychosis been a prerequisite BUT mental disease and abnormal condition of the mind are distinct because they deflect attention from the crucial question of if the defendant lacked the ability to make a meaningful choice of action

• In this case, using rotten social background as opposed to a treatable mental illness as a defense, we must recognize that civil commitment may no longer be an option, and decide the proper way to deal with these defendants.

• Despite problems, much is sacrificed in discouraging Murdock’s responsibility defense – could lead to information allowing us to learn about the causes of crime and the causal relationship between violent criminal behavior and rotten social background

Morse v. Bazelon – Scholarly Debate Over the

Connection Between Poverty and Crime The Twilight of Welfare Criminology - Stephen J. Morse

• Initially assumed that behavior was “caused” and that the causes and cures of crimes would be discovered– Sociological thinkers saw the causes of crime in social order – Psychological and psychiatric thinkers saw the causes of crime in

personality disturbances – the traditional justice system was characterized as an ineffective remedy for societal sickness

• Modern scientific approaches sought to treat the underlying causes of crime rather than treating the symptom: criminal behavior

• Question for consideration: Does poverty cause crime?– Strong correlation between low socioeconomic status and violent

street crime– BUT majority of the poor are not violent criminals

• Conclusion: Judge Bazelon wrong in belief that poverty causes crime and his poverty cure (eradicating poverty to eradicate crime) does not work

The Morality of the Criminal Law:

A Rejoinder to Professor MorseDavid L. Bazelon

• Morse concludes that the poverty cure doesn’t work, but he offers no evidence suggesting that increase in crime in periods of economic growth is produced by persons who are no longer poor suddenly turning violent

• It is those that remain poor and don’t benefit from the economic growth who become more violent

• Morse is wrong – poverty is a necessary cause of violent street crime

Third Party Reflection on the Debate

Malign Neglect – Race, Crime, and Punishment in America

Michael Tonry

• Applying a social adversity defense to all offenses committed by individuals to which it applies would eliminate all incentive to be law-abiding and lead to preventative detentions to protect the rest of society from those who can’t be held legally responsible for their crimes

• Overriding Objection: there are no groups for which the base expectancy rate for first offenses is 100% - there are always those who abide by the law, and this is a powerful argument against the social adversity defense

• Analogy between insanity and social adversity is only partial – with insanity there is little question that the offender is not morally responsible, whereas with a disadvantaged person we have no conclusive reason to think he could not have chosen to act differently. If there is a choice in the behavior than removing consequences for the wrong choice is perverse

Validation?

How do we validate the use of cultural defenses in law? How do we deal with evidentiary problems and validity of the social science? How do we even establish validity of the social science in cultural defense cases?

“Television Intoxication”

• The Zamora Cases

• The Problems

• The Research

Florida v. Zamora (Circuit Court, Dade County, Florida, 1977)

Facts: • 15 year old Zamora was tired for first degree murder of his 85

year old next door neighbor. Zamora admitted to shooting her with a pistol he found in her house when she returned home to find her in the process of burglary – Zamora and an accomplice stole $400 after the shooting

Zamora’s defense:• Attorney, Ellis Rubin, pleaded him not guilty by reason of

insanity – offered 3 facets of the alleged condition• Zamora was a television addict• Sociopathic personality who could not refrain from doing wrong• The thousands and thousands of murders that he has seen on

television caused his reaction as a condition reflex or imitation • Rubin attempted to introduce expert witnesses to present

studies on the association between watching violent television and subsequent violent behavior – Dr. Margaret Thomas – Doctor of Psychology and Assistant Dean of

Academic Affairs of Florida Technological University

• Rubin sought to have Dr. Thomas’s expert testimony support the idea that Zamora’s involuntary desensitization to violence resulting from his television addiction skewed his standards of right and wrong for killing and is a legitimate defense for his crime – Analogy that TV in this case is like alcohol, causing a loss of

control

• Judge Baker finds it essential that the reliability of the scientific tests and results of the experiments used as the basis for the evidence presented be recognized and accepted by scientists, or that the demonstration shall have passed from the stage of experimentation and uncertainty to that of reasonable demonstrability– Baker does not see the defense forwarded by Rubin and Dr.

Thomas to satisfy this standard

– Baker wanted an absolute statement that too much TV destroys ones ability to tell right from wrong

• Dr. Thomas could only assert that TV can shape conceptions of right and wrong that differ from normal ones, but there were no available studies linking television to legal insanity

– Testimony was excluded because of the lack of tests conclusively linking any television program or amount of TV violence directly to homicide or crime

Zamora v. State(District Court of Appeal of Florida, Third District, 1978)

• Following Zamora’s loss at the trial court level, an appeal was brought to challenge the decision of the trial judge to limit Dr. Thomas’s testimony – Zamora asserts that allowing Dr. Thomas to testify only to TV’s effect on sociopaths and not on the effect of violence upon adolescent viewers frustrated his insanity defense

Appeals Says:• The lower court did not err in its decisions – the evidence was properly

limited according to the M’Naghten standard – M’Naghten Standard - The doctrine that a person is not criminally

responsible for an act when a mental disability prevented the person from knowing either the nature and quality of the act or whether the act was right or wrong.

– Dr. Thomas’s unlimited testimony on effects of violence on adolescents generally would not have included testimony that showed that watching violent television programs to excess affects individuals to the point where they can’t tell right from wrong under M’Naghten, making her testimony irrelevant to the proceedings

• The court made it clear that TV was not on trial in this case, Zamora was – and his defense of not guilty by reason of insanity induced by “involuntary subliminal television intoxication” simply was not acceptable

Zamora v. Columbia Broadcasting System (United States District Court, Southern District of Florida, 1979)

• The Zamoras followed their criminal loss with a suit against the National Broadcasting Company, Columbia Broadcasting System, and the American Broadcasting Company for damages, continuing to assert that the extensive viewing of television violence put forth by the defendants’ programming involuntarily addicted and “completely subliminally intoxicated” Ronny from the age of five.

• The legal claim asserted was a breach of duty to the Zamoras to use ordinary care and prevent Ronny Zamora from being “impermissibly stimulated, incited and instigated” to duplicate the atrocities viewed on television

• The Court did not find it appropriate to find this type of liability on behalf of the defendants – such a claim would likely spiral out of control in a way that broadcasting companies would not be able to safely air much of anything. A suit of this kind endangers the stability of the First Amendment – suggesting it be altered to permit additional limitations in programming

But For??

How can we isolate the causal influence of a toxic stimulus like televised violence? Zamora has obvious problems – like the assumption that children are blank slates and that once exposed to toxic television there are no other means to minimize the alleged effects.

Research on Television Violence and other Violent Media

• Huesmann Study – Longitudinal Relations Between Children’s Exposure to TV Violence and Their Aggressive and Violent Behavior in Young Adulthood: 1977-1992

• Follow up of a 1977 longitudinal study of 557 children growing up in the Chicago area. Aim was to investigate long term relations between viewing media violence in childhood and young-adult aggressive behavior

• Study found correlations between adult aggression and early TV-viewing variables.

• Researchers concluded that the results suggest both males and females from all social strata and all levels of initial aggressiveness are placed at increased risk for the development of adult aggressive and violent behavior when they view a high and steady diet of violent TV in early childhood

Violence in Video Games(Parallel Study)

Contrasting Views• Craig Anderson – violent video games plant seeds of aggression

– Experiments show more likely to harbor aggressive thoughts and show aggressive behavior after play

• Kevin Durkin – doesn’t observe the same thing when teens play the games – Only observes people having fun

• Debate lines up as those who fear violent video games fuel aggression v. freedom of free speech advocates

•Unclear who is right•Questionable affiliations•Different interpretations of studies

•Problems•Everyone measures different things

•Personal ideas of what is violent enter analysis•Different proxies for aggression measured

Lingering Questions

• Millions of copies of video games are sold – why don’t we see greater effects? Games are clearly not affecting all who use them or we would see more than an alleged correlation. There is also the idea that these studies ignore the more complex nuances of aggression -