The Racial Hoax as Crime: The Law as Affirmation

Indiana Law Journal

Volumn 71, Issue 3, 1996, Pages 593-621

  Russell, Katheryn K ^a,b,c  

^a UNIVERSITY OF MARYLAND   (United States)

^b UNIVERSITY OF CALIFORNIA   (United States)

^c UNIVERSITY OF CALIFORNIA   (United States)

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[No Author keywords available]

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EID: 0030531725     PISSN: 00196665     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (226)

1. United States v. Clary, 846 F. Supp. 768 (E.D. Mo.), rev'd, 34 F.3d 709 (8th Cir. 1994). The court of appeals held that federal sentencing guidelines which provide a harsher penalty for crack cocaine possession than for the same amount of powder cocaine are without legal justification and are the result of "unconscious racism." Id. at 791-93.
2. See, e.g., RONALD B. FLOWERS, MINORITIES AND CRIMINALITY (1990).
3. See generally DANIEL GEORGES-ABEYIE ET AL., THE CRIMINAL JUSTICE SYSTEM AND BLACKS (1987).
4. See STEPHEN P. KLEIN ET AL., RACIAL EQUITY IN SENTENCING 11 (1988) (finding that in California the race of the defendant is not related to the sentence imposed); William Wilbanks, The Myth of a Racist Criminal Justice System, in RACISM, EMPIRICISM AND CRIMINAL JUSTICE 5 (Brian D. MacLean & Dragan Milovanovic eds., 1990) (concluding there is no systemic bias against Blacks in the criminal justice system). Wilbanks finds that there is a "canceling-out effect." While some decisionmakers favor Whites, "there appears to be an equal tendency for other individual decisionmakers to favor blacks over whites." Id. at 6 (emphasis in original). This research is in contrast to earlier findings that race does have an impact on sentence. JOAN PETERSILIA, RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM (1983).
5. See STEPHEN P. KLEIN ET AL., RACIAL EQUITY IN SENTENCING 11 (1988) (finding that in California the race of the defendant is not related to the sentence imposed); William Wilbanks, The Myth of a Racist Criminal Justice System, in RACISM, EMPIRICISM AND CRIMINAL JUSTICE 5 (Brian D. MacLean & Dragan Milovanovic eds., 1990) (concluding there is no systemic bias against Blacks in the criminal justice system). Wilbanks finds that there is a "canceling-out effect." While some decisionmakers favor Whites, "there appears to be an equal tendency for other individual decisionmakers to favor blacks over whites." Id. at 6 (emphasis in original). This research is in contrast to earlier findings that race does have an impact on sentence. JOAN PETERSILIA, RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM (1983).
6. See STEPHEN P. KLEIN ET AL., RACIAL EQUITY IN SENTENCING 11 (1988) (finding that in California the race of the defendant is not related to the sentence imposed); William Wilbanks, The Myth of a Racist Criminal Justice System, in RACISM, EMPIRICISM AND CRIMINAL JUSTICE 5 (Brian D. MacLean & Dragan Milovanovic eds., 1990) (concluding there is no systemic bias against Blacks in the criminal justice system). Wilbanks finds that there is a "canceling-out effect." While some decisionmakers favor Whites, "there appears to be an equal tendency for other individual decisionmakers to favor blacks over whites." Id. at 6 (emphasis in original). This research is in contrast to earlier findings that race does have an impact on sentence. JOAN PETERSILIA, RACIAL DISPARITIES IN THE CRIMINAL JUSTICE SYSTEM (1983).
7. See GEORGES-ABEYIE ET AL., supra note 3, at 11, 12 (arguing that the focus upon formal stages of the justice system obscures "petit apartheid" which is the "most significant contemporary form of racism . . . e.g., the everyday insults, rough or brutal treatment, and unnecessary stops, questions, and searches of blacks; the lack of civility faced by black suspects/arrestees").
8. See, e.g., Peggy C. Davis, Law as Microaggression, 98 YALE L.J. 1559 (1989) (citing NATIONAL CENTER FOR STATE COURTS, THE PUBLIC IMAGE OF COURTS (1977)).
9. See, e.g., Robert L. Young, Race, Conceptions of Crime and Justice, and Support for the Death Penalty, 54 SOC. PSYCHOL. Q. 67, 72-73 (1991) (finding that the differing views of the justice system are in part rooted in levels of trust in law enforcement). Racially divided public opinion in the O.J. Simpson case attests to this. In July, 1995, a USA Today/CNN/Gallup poll reported that 87% of the Black respondents believe Simpson was a victim of a racist criminal justice system. Only six percent of the Whites polled held the same opinion. Richard Price, Racial Split Widens, USA TODAY, July 25, 1995, at 3A. A number of Blacks within the legal system also negatively perceive the criminal justice system, including judges, see generally LINN WASHINGTON, BLACK JUDGES ON JUSTICE (1994), and students, see, e.g., Melissa H. Barlow & David E. Barlow, Confronting Ideologies of Race and Crime in the Classroom: The Power of History, 6 J. CRIM. JUST. EDUC. 105, 110-11 (1995). Blacks are more likely to be distrustful of the criminal justice system, yet they hold punitive attitudes on crime comparable to those of Whites. This is in part explained by greater fear of criminal victimization. Steven F. Cohn et al., Punitive Attitudes Toward Criminals: Racial Consensus or Racial Conflict, 38 SOC. PROBS. 287, 288 (1991).
10. See, e.g., Robert L. Young, Race, Conceptions of Crime and Justice, and Support for the Death Penalty, 54 SOC. PSYCHOL. Q. 67, 72-73 (1991) (finding that the differing views of the justice system are in part rooted in levels of trust in law enforcement). Racially divided public opinion in the O.J. Simpson case attests to this. In July, 1995, a USA Today/CNN/Gallup poll reported that 87% of the Black respondents believe Simpson was a victim of a racist criminal justice system. Only six percent of the Whites polled held the same opinion. Richard Price, Racial Split Widens, USA TODAY, July 25, 1995, at 3A. A number of Blacks within the legal system also negatively perceive the criminal justice system, including judges, see generally LINN WASHINGTON, BLACK JUDGES ON JUSTICE (1994), and students, see, e.g., Melissa H. Barlow & David E. Barlow, Confronting Ideologies of Race and Crime in the Classroom: The Power of History, 6 J. CRIM. JUST. EDUC. 105, 110-11 (1995). Blacks are more likely to be distrustful of the criminal justice system, yet they hold punitive attitudes on crime comparable to those of Whites. This is in part explained by greater fear of criminal victimization. Steven F. Cohn et al., Punitive Attitudes Toward Criminals: Racial Consensus or Racial Conflict, 38 SOC. PROBS. 287, 288 (1991).
11. See, e.g., Robert L. Young, Race, Conceptions of Crime and Justice, and Support for the Death Penalty, 54 SOC. PSYCHOL. Q. 67, 72-73 (1991) (finding that the differing views of the justice system are in part rooted in levels of trust in law enforcement). Racially divided public opinion in the O.J. Simpson case attests to this. In July, 1995, a USA Today/CNN/Gallup poll reported that 87% of the Black respondents believe Simpson was a victim of a racist criminal justice system. Only six percent of the Whites polled held the same opinion. Richard Price, Racial Split Widens, USA TODAY, July 25, 1995, at 3A. A number of Blacks within the legal system also negatively perceive the criminal justice system, including judges, see generally LINN WASHINGTON, BLACK JUDGES ON JUSTICE (1994), and students, see, e.g., Melissa H. Barlow & David E. Barlow, Confronting Ideologies of Race and Crime in the Classroom: The Power of History, 6 J. CRIM. JUST. EDUC. 105, 110-11 (1995). Blacks are more likely to be distrustful of the criminal justice system, yet they hold punitive attitudes on crime comparable to those of Whites. This is in part explained by greater fear of criminal victimization. Steven F. Cohn et al., Punitive Attitudes Toward Criminals: Racial Consensus or Racial Conflict, 38 SOC. PROBS. 287, 288 (1991).
12. See, e.g., Robert L. Young, Race, Conceptions of Crime and Justice, and Support for the Death Penalty, 54 SOC. PSYCHOL. Q. 67, 72-73 (1991) (finding that the differing views of the justice system are in part rooted in levels of trust in law enforcement). Racially divided public opinion in the O.J. Simpson case attests to this. In July, 1995, a USA Today/CNN/Gallup poll reported that 87% of the Black respondents believe Simpson was a victim of a racist criminal justice system. Only six percent of the Whites polled held the same opinion. Richard Price, Racial Split Widens, USA TODAY, July 25, 1995, at 3A. A number of Blacks within the legal system also negatively perceive the criminal justice system, including judges, see generally LINN WASHINGTON, BLACK JUDGES ON JUSTICE (1994), and students, see, e.g., Melissa H. Barlow & David E. Barlow, Confronting Ideologies of Race and Crime in the Classroom: The Power of History, 6 J. CRIM. JUST. EDUC. 105, 110-11 (1995). Blacks are more likely to be distrustful of the criminal justice system, yet they hold punitive attitudes on crime comparable to those of Whites. This is in part explained by greater fear of criminal victimization. Steven F. Cohn et al., Punitive Attitudes Toward Criminals: Racial Consensus or Racial Conflict, 38 SOC. PROBS. 287, 288 (1991).
13. See, e.g., GEORGE GALLUP, JR., THE GALLUP POLL: PUBLIC OPINION 1993, at 231 (1994) (reporting that 74% of Whites polled rated local police to be "excellent" or "good," while only 48% of Blacks share this belief).
14. See, e.g., NEWT GINGRICH ET AL., CONTRACT WITH AMERICA 37-64 (Ed Gillespie & Bob Schellhas eds., 1995);
15. Rick Bragg, Chain Gangs to Return to Roads of Alabama, N.Y. TIMES, Mar. 26, 1995, at A16.
16. See, e.g., ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL 189 (1992); Developments in the Law - Race and the Criminal Process, 101 HARV. L. REV. 1472, 1494-98 (1988); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243 (1991). See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 94-112 (1990), for a discussion of the effect of experience on the perceived legitimacy of justice operations.
17. See, e.g., ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL 189 (1992); Developments in the Law - Race and the Criminal Process, 101 HARV. L. REV. 1472, 1494-98 (1988); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243 (1991). See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 94-112 (1990), for a discussion of the effect of experience on the perceived legitimacy of justice operations.
18. See, e.g., ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL 189 (1992); Developments in the Law - Race and the Criminal Process, 101 HARV. L. REV. 1472, 1494-98 (1988); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243 (1991). See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 94-112 (1990), for a discussion of the effect of experience on the perceived legitimacy of justice operations.
19. See, e.g., ANDREW HACKER, TWO NATIONS: BLACK AND WHITE, SEPARATE, HOSTILE, UNEQUAL 189 (1992); Developments in the Law - Race and the Criminal Process, 101 HARV. L. REV. 1472, 1494-98 (1988); Tracey Maclin, "Black and Blue Encounters" - Some Preliminary Thoughts About Fourth Amendment Seizures: Should Race Matter?, 26 VAL. U. L. REV. 243 (1991). See TOM R. TYLER, WHY PEOPLE OBEY THE LAW 94-112 (1990), for a discussion of the effect of experience on the perceived legitimacy of justice operations.
20. See Davis, supra note 6, at 68-71. Some have argued for the construction of a variable which would examine race-specific "group experiences." See, e.g., Katheryn K. Russell, The Racial Inequality Hypothesis, 18 L. & HUM. BEHAV. 305 (1994). The racial divide between Blacks and Whites with regard to the O.J. Simpson case supports the "group experience" concept. See Richard C. Dieter, Secondary Smoke Surrounds Capital Punishment Debate, CRIM. JUST. ETHICS, Winter-Spring 1994, at 2; Kenneth B. Noble, The Simpson Defense: Source of Black Pride, N.Y. TIMES, Mar. 6, 1995, at A10.
21. See Davis, supra note 6, at 68-71. Some have argued for the construction of a variable which would examine race-specific "group experiences." See, e.g., Katheryn K. Russell, The Racial Inequality Hypothesis, 18 L. & HUM. BEHAV. 305 (1994). The racial divide between Blacks and Whites with regard to the O.J. Simpson case supports the "group experience" concept. See Richard C. Dieter, Secondary Smoke Surrounds Capital Punishment Debate, CRIM. JUST. ETHICS, Winter-Spring 1994, at 2; Kenneth B. Noble, The Simpson Defense: Source of Black Pride, N.Y. TIMES, Mar. 6, 1995, at A10.
22. See Davis, supra note 6, at 68-71. Some have argued for the construction of a variable which would examine race-specific "group experiences." See, e.g., Katheryn K. Russell, The Racial Inequality Hypothesis, 18 L. & HUM. BEHAV. 305 (1994). The racial divide between Blacks and Whites with regard to the O.J. Simpson case supports the "group experience" concept. See Richard C. Dieter, Secondary Smoke Surrounds Capital Punishment Debate, CRIM. JUST. ETHICS, Winter-Spring 1994, at 2; Kenneth B. Noble, The Simpson Defense: Source of Black Pride, N.Y. TIMES, Mar. 6, 1995, at A10.
23. Examples of the former include police brutality and judicial bias. Examples of the latter include Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e - 2000e-17 (1988 & Supp. V 1993) (prohibiting discrimination on the basis of race and sex, among other things); Hate Crimes Statistics Act, 28 U.S.C. § 534 (1990) (authorizing the Attorney General to gather hate crime data); 42 U.S.C. § 1983 (1988) (prohibiting racial discrimination by one acting under the color of law).
24. New Jersey has proposed legislation which would subject racial hoaxes to criminal sanction. N.J. Assembly Bill 2553, 206th Leg., 2d Sess. (1995), available in WESTLAW, NJ-Bills Database. For further discussion, see infra part IV.C.
25. A racial hoax occurs when (1) someone fabricates a crime then blames it on, for example, a Black person; or (2) an actual crime has been committed and someone falsely blames, for example, a Black person. The Miriam Kashani "rape" case and Susan Smith "kidnapping" case, respectively, are examples.
26. Amy Argetsinger, Insurance May Be Motive in Fiancee's Slaying, WASH. POST, Feb. 1, 1996, at D1; Police Say Md. Man Had Fiancee Killed, Blamed Black Robber, WASH. POST, Jan. 30, 1996, at B6.
27. Richard Grant, Mother of All Crimes, INDEPENDENT (London), Feb. 25, 1995, at 16.
28. Smith was charged with two counts of capital murder. Notably, she was not charged with filing a false police report. See Henry Eichel, Mother May Face Death Penalty; Confessed to Drowning Sons, RECORD (Bergen, N.J.), Jan. 16, 1995, at A1. In August, 1995, Smith was sentenced to life in prison. Under South Carolina law, Smith will serve a minimum of 30 years in prison. S.C. CODE ANN. § 16-3-20 (Law. Co-op. 1993). It is a misdemeanor, under South Carolina law, to give false information to a law enforcement official. Upon conviction, one may be fined $200 or imprisoned for up to 30 days. Id. § 16-17-725.
29. See, e.g., Rogers Worthington, Once a Victim, Now a Suspect Husband Held as Cops Question Account of Wife's Slaying, CHI. TRIB., Apr. 28, 1992, at 1; Milwaukee Media Criticized on Murders (National Public Radio broadcast, Apr. 30, 1992), available in LEXIS, News Library, Script File. In an odd twist, Anderson was murdered in prison along with serial murderer Jeffrey Dahmer. Don Terry, Suspect in Dahmer Killing Said, 'I'm the Chosen One', N.Y. TIMES, Nov. 30, 1994, at A18. It has been speculated that Anderson was targeted along with Dahmer because of the racial upheaval his hoax caused. See, e.g., Rupert Cornwell, Race Theory Emerges in Dahmer Jail Murder, INDEPENDENT (London), Nov. 30, 1994, at 31.
30. See, e.g., Rogers Worthington, Once a Victim, Now a Suspect Husband Held as Cops Question Account of Wife's Slaying, CHI. TRIB., Apr. 28, 1992, at 1; Milwaukee Media Criticized on Murders (National Public Radio broadcast, Apr. 30, 1992), available in LEXIS, News Library, Script File. In an odd twist, Anderson was murdered in prison along with serial murderer Jeffrey Dahmer. Don Terry, Suspect in Dahmer Killing Said, 'I'm the Chosen One', N.Y. TIMES, Nov. 30, 1994, at A18. It has been speculated that Anderson was targeted along with Dahmer because of the racial upheaval his hoax caused. See, e.g., Rupert Cornwell, Race Theory Emerges in Dahmer Jail Murder, INDEPENDENT (London), Nov. 30, 1994, at 31.
31. See, e.g., Rogers Worthington, Once a Victim, Now a Suspect Husband Held as Cops Question Account of Wife's Slaying, CHI. TRIB., Apr. 28, 1992, at 1; Milwaukee Media Criticized on Murders (National Public Radio broadcast, Apr. 30, 1992), available in LEXIS, News Library, Script File. In an odd twist, Anderson was murdered in prison along with serial murderer Jeffrey Dahmer. Don Terry, Suspect in Dahmer Killing Said, 'I'm the Chosen One', N.Y. TIMES, Nov. 30, 1994, at A18. It has been speculated that Anderson was targeted along with Dahmer because of the racial upheaval his hoax caused. See, e.g., Rupert Cornwell, Race Theory Emerges in Dahmer Jail Murder, INDEPENDENT (London), Nov. 30, 1994, at 31.
32. See, e.g., Rogers Worthington, Once a Victim, Now a Suspect Husband Held as Cops Question Account of Wife's Slaying, CHI. TRIB., Apr. 28, 1992, at 1; Milwaukee Media Criticized on Murders (National Public Radio broadcast, Apr. 30, 1992), available in LEXIS, News Library, Script File. In an odd twist, Anderson was murdered in prison along with serial murderer Jeffrey Dahmer. Don Terry, Suspect in Dahmer Killing Said, 'I'm the Chosen One', N.Y. TIMES, Nov. 30, 1994, at A18. It has been speculated that Anderson was targeted along with Dahmer because of the racial upheaval his hoax caused. See, e.g., Rupert Cornwell, Race Theory Emerges in Dahmer Jail Murder, INDEPENDENT (London), Nov. 30, 1994, at 31.
33. Felicity Barringer, False Rape Report Upsetting Campus, N.Y. TIMES, Dec. 12, 1990, at A21.
34. Jonetta R. Barras, Blacks See Racism in Rape Hoax at GWU, WASH. TIMES, Dec. 12, 1990, at B4.
35. Id; see BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, CRIMINAL VICTIMIZATION IN THE UNITED STATES 1992, at 61 (1994).
36. JOE R. FEAGIN & HERNÁN VERA, WHITE RACISM 64 (1995).
37. Michael Grunwald, For Boston, Harsh Reminder; Five Years Ago, Stuart's Racist Hoax Was Hatched - and Believed, BOSTON GLOBE, Nov. 4, 1994, at 17.
38. Stuart had talked to his brother about killing Carol Stuart for her insurance money and asked him to dispose of her purse after the shooting incident. FEAGIN & VERA, supra note 22, at 64.
39. Id. at 63-67.
40. Commenting on how the racial angle is often overlooked, Pulitzer-Prize-winning journalist William Raspberry notes, "[H]ere is a woman [Susan Smith] suspected of killing her own children, and we want to chastise her for racial insensitivity?" William Raspberry, Automatically Suspect, WASH. POST, Nov. 5, 1994, at A19. One commentator, referring to the media's treatment of the Stuart case stated,"[The press is] covering everything in detail except the most important story - the color story." Christopher Edley, Jr., Racist Media, Politicians Sustained Boston Hoax, MANHATTAN LAW., Mar. 1990, at 18.
41. Commenting on how the racial angle is often overlooked, Pulitzer-Prize-winning journalist William Raspberry notes, "[H]ere is a woman [Susan Smith] suspected of killing her own children, and we want to chastise her for racial insensitivity?" William Raspberry, Automatically Suspect, WASH. POST, Nov. 5, 1994, at A19. One commentator, referring to the media's treatment of the Stuart case stated,"[The press is] covering everything in detail except the most important story - the color story." Christopher Edley, Jr., Racist Media, Politicians Sustained Boston Hoax, MANHATTAN LAW., Mar. 1990, at 18.
42. See Edley, Jr., supra note 26, at 18.
43. Michele Parente, Black Community Is Given an Apology: Drowned Boys' Uncle Speaks for the Family, NEWSDAY, Nov. 9, 1994, at A66.
44. Edley, supra note 26, at 18.
45. DAN T. CARTER, SCOTTSBORO: A TRAGEDY OF THE AMERICAN SOUTH 5-6 (1969). The Scottsboro injustices were addressed in Powell v. Alabama, 287 U.S. 45 (1932), which fleshed out the parameters of the Sixth Amendment right to a fair trial.
46. See generally CARTER, supra note 30.
47. In January, 1995, a White man in the Trenton, New Jersey area told authorities that he saw a Black man abducting a White girl whose mouth had been bound with duct tape. Five hours later it was determined that the story was a hoax. Steve Adubato, Toughen Penalties for False Accusation Based Upon Race, RECORD (Bergen, N.J.), Jan. 24, 1995, at B7. A Camden, New Jersey case in 1990 involved prosecutor Sam Asbell, who claimed that he had been chased by two Black gunmen as part of an assassination plot. He later admitted to making the story up and pled guilty to filing a false police report. Id. In 1989, Tanya Dacri, a White Philadelphia mother of an infant boy, said that while in a shopping mall parking lot, her child was abducted by two Black men. She subsequently pled guilty to murdering and dismembering her son. She was found guilty of first degree murder. Don Williamson, We Have to Slop Creating Bogeymen, SEATTLE TIMES, Jan. 9, 1990, at A6.
48. In January, 1995, a White man in the Trenton, New Jersey area told authorities that he saw a Black man abducting a White girl whose mouth had been bound with duct tape. Five hours later it was determined that the story was a hoax. Steve Adubato, Toughen Penalties for False Accusation Based Upon Race, RECORD (Bergen, N.J.), Jan. 24, 1995, at B7. A Camden, New Jersey case in 1990 involved prosecutor Sam Asbell, who claimed that he had been chased by two Black gunmen as part of an assassination plot. He later admitted to making the story up and pled guilty to filing a false police report. Id. In 1989, Tanya Dacri, a White Philadelphia mother of an infant boy, said that while in a shopping mall parking lot, her child was abducted by two Black men. She subsequently pled guilty to murdering and dismembering her son. She was found guilty of first degree murder. Don Williamson, We Have to Slop Creating Bogeymen, SEATTLE TIMES, Jan. 9, 1990, at A6.
49. See ROBERT D. MCFADDEN ET AL., OUTRAGE: THE STORY BEHIND THE TAWANA BRAWLEY HOAX (1990).
50. Peter Applebome, Woman's Claim of Racial Crime Is Called a Hoax, N.Y. TIMES, June 1, 1990, at A14.
51. Id.
52. Id.
53. Andrew Kopkind observed that while the Stuart hoax triggered police invasions of Black communities, illegal searches and seizures, and racial slurs by law enforcement officials against Blacks, there was "[n]o comparable repression of the white community in New York State follow[ing] Brawley's charge." Andrew Kopkind, The Stuart Case: Race, Class, and Murder in Boston, 250 NATION 149, 149, 153 (1990).
54. "Hate crimes" have been defined as "crime[s] in which the defendant's conduct was motivated by hatred, bias, or prejudice, based on the actual or perceived race, color, religion, national origin, ethnicity, gender, or sexual orientation of another individual or group of individuals." H.R. 4797, 102d Cong., 2d Sess. (1992).
55. White-on-Black homicide is less prevalent than Black-on-White homicide. For 1993, White-on-Black murders make up 5% of the total murders with Black victims, while Black-On-White murders make up 15% of all murders with White victims. See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE U.S. 1993, at 17 (1994). In general, there is more Black-On-White crime than White-on-Black crime because "there are more whites for blacks to interact with, and therefore potentially more black[-on-]white crime compared to white[-on-]black crime." CORAMAE RICHEY MANN, UNEQUAL JUSTICE 33 (1993).
56. See, e.g., Jandrucko v. Colorcraft/Fuqua Corp., No. 163-20-6245 (Fla. Dept. of Labor and Employment Sec. Apr. 26, 1990). Jandrucko involved an elderly White woman who told authorities she was mugged by a Black man and said the incident left her afraid of all Blacks. She sought and was granted workers' compensation. Jandrucko admitted that she did not see the face of her attacker. She only saw his dark-colored arms. This means the offender could have been a Black person, a dark-skinned Latino, or a tanned White person. The Florida Senate has since passed legislation precluding workers' compensation awards for phobias based upon race. Karen Branch, Bill Bans Fear of Co-Workers as a Workers' Comp Claim, MIAMI HERALD, Mar. 3, 1993, at B8; see also Walter L. Updegrave, Crime: Who's Safe, Who's Not, MONEY, June 1994, at 114, 119-21. For a provocative discussion of "negrophobia" and the criminal law, see Jody Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians and Involuntary Negrophobes, 46 STAN. L. REV. 781 (1994). While the focus of this negative stereotype falls squarely on the head of the Black male, its impact upon the Black female should not be overlooked. As the mother and mate of the Black male, she is intrinsically linked to and implicated by this stereotype.
57. See, e.g., Jandrucko v. Colorcraft/Fuqua Corp., No. 163-20-6245 (Fla. Dept. of Labor and Employment Sec. Apr. 26, 1990). Jandrucko involved an elderly White woman who told authorities she was mugged by a Black man and said the incident left her afraid of all Blacks. She sought and was granted workers' compensation. Jandrucko admitted that she did not see the face of her attacker. She only saw his dark-colored arms. This means the offender could have been a Black person, a dark-skinned Latino, or a tanned White person. The Florida Senate has since passed legislation precluding workers' compensation awards for phobias based upon race. Karen Branch, Bill Bans Fear of Co-Workers as a Workers' Comp Claim, MIAMI HERALD, Mar. 3, 1993, at B8; see also Walter L. Updegrave, Crime: Who's Safe, Who's Not, MONEY, June 1994, at 114, 119-21. For a provocative discussion of "negrophobia" and the criminal law, see Jody Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians and Involuntary Negrophobes, 46 STAN. L. REV. 781 (1994). While the focus of this negative stereotype falls squarely on the head of the Black male, its impact upon the Black female should not be overlooked. As the mother and mate of the Black male, she is intrinsically linked to and implicated by this stereotype.
58. See, e.g., Jandrucko v. Colorcraft/Fuqua Corp., No. 163-20-6245 (Fla. Dept. of Labor and Employment Sec. Apr. 26, 1990). Jandrucko involved an elderly White woman who told authorities she was mugged by a Black man and said the incident left her afraid of all Blacks. She sought and was granted workers' compensation. Jandrucko admitted that she did not see the face of her attacker. She only saw his dark-colored arms. This means the offender could have been a Black person, a dark-skinned Latino, or a tanned White person. The Florida Senate has since passed legislation precluding workers' compensation awards for phobias based upon race. Karen Branch, Bill Bans Fear of Co-Workers as a Workers' Comp Claim, MIAMI HERALD, Mar. 3, 1993, at B8; see also Walter L. Updegrave, Crime: Who's Safe, Who's Not, MONEY, June 1994, at 114, 119-21. For a provocative discussion of "negrophobia" and the criminal law, see Jody Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Bayesians and Involuntary Negrophobes, 46 STAN. L. REV. 781 (1994). While the focus of this negative stereotype falls squarely on the head of the Black male, its impact upon the Black female should not be overlooked. As the mother and mate of the Black male, she is intrinsically linked to and implicated by this stereotype.
59. See, e.g., DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW §§ 2.1-2.3 (1980); GUNNAR MYRDAL, AN AMERICAN DILEMMA 60 (1964) (discussing the "white man's . . . order of discriminations") (emphasis omitted). This threat was codified into law. Historically, the rape of a White woman by a Black man (slave, free, or otherwise) was punishable by death. See, e.g., A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR 263 (1978).
60. See, e.g., DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW §§ 2.1-2.3 (1980); GUNNAR MYRDAL, AN AMERICAN DILEMMA 60 (1964) (discussing the "white man's . . . order of discriminations") (emphasis omitted). This threat was codified into law. Historically, the rape of a White woman by a Black man (slave, free, or otherwise) was punishable by death. See, e.g., A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR 263 (1978).
61. See, e.g., DERRICK A. BELL, RACE, RACISM AND AMERICAN LAW §§ 2.1-2.3 (1980); GUNNAR MYRDAL, AN AMERICAN DILEMMA 60 (1964) (discussing the "white man's . . . order of discriminations") (emphasis omitted). This threat was codified into law. Historically, the rape of a White woman by a Black man (slave, free, or otherwise) was punishable by death. See, e.g., A. LEON HIGGINBOTHAM, JR., IN THE MATTER OF COLOR 263 (1978).
62. Official data for the last 10 years show that Whites consistently comprise between two-thirds and three-quarters of all arrests in any given year. See FEDERAL BUREAU OF INVESTIGATION, U.S. DEP'T OF JUSTICE, CRIME IN THE U.S. 1984-1993 (1994). See generally Katheryn K. Russell, White Crime (1994) (unpublished manuscript on file with author) (arguing that the discipline of criminology is overly focused upon Black crime and does not offer comparable attention to White crime).
63. Speculating about the impact of the Susan Smith hoax, one commentator asks, "What message is being sent to our young Black boys trying to find their place in a world that limits their importance to about 100 entertainers and 200 athletes?" Kevin Ross, The Bogeyman Still Haunts Many White Minds, EMERGE, Feb. 1995, at 84. Another notes, "Some blacks wonder how they can raise a younger generation of African-Americans with enough self-esteem and lack of bitterness in the face of lingering racism." Deepti Hajela, Blacks Wonder Why Hoax So Easily Believed; Crime Revives Questions of Prejudice, SUN-SENTINEL (Fort Lauderdale), Nov. 5, 1994, at 16A; see also ROBYN HOLMES, HOW YOUNG CHILDREN PERCEIVE RACE (1995); Davis, supra note 6, at 1562 (stating that children assimilate negative racial stereotypes before they reach the age of judgment).
64. Speculating about the impact of the Susan Smith hoax, one commentator asks, "What message is being sent to our young Black boys trying to find their place in a world that limits their importance to about 100 entertainers and 200 athletes?" Kevin Ross, The Bogeyman Still Haunts Many White Minds, EMERGE, Feb. 1995, at 84. Another notes, "Some blacks wonder how they can raise a younger generation of African-Americans with enough self-esteem and lack of bitterness in the face of lingering racism." Deepti Hajela, Blacks Wonder Why Hoax So Easily Believed; Crime Revives Questions of Prejudice, SUN-SENTINEL (Fort Lauderdale), Nov. 5, 1994, at 16A; see also ROBYN HOLMES, HOW YOUNG CHILDREN PERCEIVE RACE (1995); Davis, supra note 6, at 1562 (stating that children assimilate negative racial stereotypes before they reach the age of judgment).
65. Speculating about the impact of the Susan Smith hoax, one commentator asks, "What message is being sent to our young Black boys trying to find their place in a world that limits their importance to about 100 entertainers and 200 athletes?" Kevin Ross, The Bogeyman Still Haunts Many White Minds, EMERGE, Feb. 1995, at 84. Another notes, "Some blacks wonder how they can raise a younger generation of African-Americans with enough self-esteem and lack of bitterness in the face of lingering racism." Deepti Hajela, Blacks Wonder Why Hoax So Easily Believed; Crime Revives Questions of Prejudice, SUN-SENTINEL (Fort Lauderdale), Nov. 5, 1994, at 16A; see also ROBYN HOLMES, HOW YOUNG CHILDREN PERCEIVE RACE (1995); Davis, supra note 6, at 1562 (stating that children assimilate negative racial stereotypes before they reach the age of judgment).
66. See, e.g., Kopkind, supra note 37, at 154.
67. Hajela, supra note 43, at 16A.
68. See, e.g., Lydia Saad & Leslie McAneny, Black Americans See Little Justice for Themselves, GALLUP POLL MONTHLY, Mar. 1995, at 32. There was a large gap between Black and White attitudes on O.J. Simpson's guilt. At one time, 75% of White but only 25% of Black respondents believed the murder charges were at least probably true. Price, supra note 7, at 3A. In 1995, there was discussion in the Black community that the criminal allegations made against three major Black entertainment figures, Mike Tyson, Michael Jackson, and O.J. Simpson, were part of a plot to destroy successful Black men. Conversation with Mike Tyson (Black Entertainment Television broadcast, Aug. 16, 1995). See generally PATRICIA A. TURNER, I HEARD IT THROUGH THE GRAPEVTNE: RUMOR IN AFRICAN AMERICAN CULTURE (1993) (discussing prevalence of conspiracy theories in the Black community).
69. See, e.g., Lydia Saad & Leslie McAneny, Black Americans See Little Justice for Themselves, GALLUP POLL MONTHLY, Mar. 1995, at 32. There was a large gap between Black and White attitudes on O.J. Simpson's guilt. At one time, 75% of White but only 25% of Black respondents believed the murder charges were at least probably true. Price, supra note 7, at 3A. In 1995, there was discussion in the Black community that the criminal allegations made against three major Black entertainment figures, Mike Tyson, Michael Jackson, and O.J. Simpson, were part of a plot to destroy successful Black men. Conversation with Mike Tyson (Black Entertainment Television broadcast, Aug. 16, 1995). See generally PATRICIA A. TURNER, I HEARD IT THROUGH THE GRAPEVTNE: RUMOR IN AFRICAN AMERICAN CULTURE (1993) (discussing prevalence of conspiracy theories in the Black community).
70. See, e.g., JAMES H. JONES, BAD BLOOD: THE TUSKEGEE SYPHILIS EXPERIMENT (1993).
71. The use of the term "racialism" may be preferable to the use of the term "racism." By eliminating the hysteria associated with racism, perhaps a more objective sociological and legal assessment can be made of acts which cause race-based harm. See Stephen Carter, When Victims Happen to Be Black, 97 YALE L.J. 420, 443 (1988); Davis, supra note 6, at 1570. For purposes of this paper, the Author uses "racist" to connote conduct which causes race-based harm, without reference to the actor's intent.
72. See Richard Delgado, Words That Wound: A Tort Action for Racial Insults, Epithets, and Name Calling, in WORDS THAT WOUND 89, 90-96 (Mari Matsuda et al. eds., 1993), for an excellent discussion of the impact of racist speech upon Blacks and Whites.
73. Patricia Williams, Spirit-Murdering the Messenger: The Discourse of Fingerpointing as the Law's Response to Racism, 42 U. MIAMI L. REV. 127 (1987).
74. See generally Davis, supra note 6.
75. Wendy Brown-Scott, The Communitarian State: Lawlessness or Law Reform for African-Americans?, 107 HARV. L. REV. 1209 (1994).
76. Williams, supra note 50, at 129.
77. Id. at 136-39, 144-48, 152-54.
78. Id.
79. Id. at 152.
80. Id. at 155 (citation omitted). This phenomenon was also evident in the O.J. Simpson case after the "Mark Fuhrman tapes" were made public in August, 1995. On tape, Fuhrman, now a retired L.A.P.D. detective, discussed beating and framing citizens, bragged of lies he told the police department, used slurs to describe minorities and women, and boasted about his membership in a police group named "Men Against Women." See, e.g., David Margolick, What the Tapes in the Simpson Case Say, N.Y. TIMES, Aug. 23, 1995, at A14. The reaction to the tapes was mixed. Some commentators believed Fuhrman was puffing, others suggested he was an aberrant rogue cop, and still others argued that his racism bore no relevance to Simpson's guilt or innocence. For many Blacks, however, the Fuhrman tapes validated their longstanding complaints of police brutality. William Claiborne and Kathryn Wexler, Tapes Hit Home for L.A. Blacks, WASH. POST, Aug. 31, 1995, at A1.
81. Id. at 155 (citation omitted). This phenomenon was also evident in the O.J. Simpson case after the "Mark Fuhrman tapes" were made public in August, 1995. On tape, Fuhrman, now a retired L.A.P.D. detective, discussed beating and framing citizens, bragged of lies he told the police department, used slurs to describe minorities and women, and boasted about his membership in a police group named "Men Against Women." See, e.g., David Margolick, What the Tapes in the Simpson Case Say, N.Y. TIMES, Aug. 23, 1995, at A14. The reaction to the tapes was mixed. Some commentators believed Fuhrman was puffing, others suggested he was an aberrant rogue cop, and still others argued that his racism bore no relevance to Simpson's guilt or innocence. For many Blacks, however, the Fuhrman tapes validated their longstanding complaints of police brutality. William Claiborne and Kathryn Wexler, Tapes Hit Home for L.A. Blacks, WASH. POST, Aug. 31, 1995, at A1.
82. Davis, supra note 6, at 1565 (quoting Chester M. Pierce et al., An Experiment in Racism: TV Commercials, in TELEVISION AND EDUCATION 62, 66 (Chester M. Pierce ed., 1978)).
83. Id. at 1569. See generally PHILOMENA ESSED, UNDERSTANDING EVERYDAY RACISM (1991).
84. Davis, supra note 6, at 1570.
85. Id. at 1562.
86. Davis notes that macroaggressions could be characterized as microaggressions vis-a-vis each individual who heard them. E-mail message from Professor Peggy S. Davis to Professor Katheryn K. Russell (Apr. 14, 1995) (on file with Indiana Law Journal).
87. The New York Times and The Washington Post were the primary sources for the one-month search.
88. World News Saturday: Bitter Dispute over DNA Testing of Blacks in Ann Arbor (ABC television broadcast, Feb. 4, 1995). There were earlier regional reports of this case. See, e.g., Maryanne George, Women Living in Fear, CHI. TRIB., Dec. 27, 1994, at 7.
89. See Ronald Smothers, Pilloried on a List That's Guilt by Name, N.Y. TIMES, Feb. 5, 1995, at 18. Smothers describes how Union Point, Georgia merchants, with the support of their mayor, imposed a ban upon 21 Blacks. The ban, implemented in December, 1994, prohibited those listed from entering the town's commercial establishments and threatened criminal trespass charges for violations. The list was devised as an anticrime measure. Though suspected of criminal activity, none of the 21 had ever been convicted of any crime. In late February, 1995, the merchants lifted the ban. The U.S. District Court Judge who negotiated the settlement stated, "[The store owners'] efforts to prevent crime were not motivated by any racial motivation." Georgia Shops Lift Ban on 21 Blacks, WASH. POST, Feb. 23, 1995, at A5.
90. See Ronald Smothers, Pilloried on a List That's Guilt by Name, N.Y. TIMES, Feb. 5, 1995, at 18. Smothers describes how Union Point, Georgia merchants, with the support of their mayor, imposed a ban upon 21 Blacks. The ban, implemented in December, 1994, prohibited those listed from entering the town's commercial establishments and threatened criminal trespass charges for violations. The list was devised as an anticrime measure. Though suspected of criminal activity, none of the 21 had ever been convicted of any crime. In late February, 1995, the merchants lifted the ban. The U.S. District Court Judge who negotiated the settlement stated, "[The store owners'] efforts to prevent crime were not motivated by any racial motivation." Georgia Shops Lift Ban on 21 Blacks, WASH. POST, Feb. 23, 1995, at A5.
91. On November 11, 1994, Rutgers President Francis Lawrence made the following statement: "The average SAT for African Americans is 750. . . . Do we set standards in the future so that we don't admit anybody with the national test? Or do we deal with a disadvantaged population that doesn't have that genetic hereditary background to have a higher average?" Rutgers Game Halted by Protesting Students, WASH. POST, Feb. 8, 1995, at A3.
92. Around the Nation, WASH. POST, Feb. 11, 1995, at A2 (stating that David Walden and Shawn Daniels of Missouri pled guilty to federal civil rights violations for these offenses - driving around St. Louis on the 1991 and 1992 Martin Luther King holidays "spraying more than 50 blacks with water and koolaid from a fire extinguisher").
93. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church Break-In, WASH. POST, Feb. 23, 1995, at Md. 3 (reporting that two youths were charged with burglary for breaking into a church and spraying the letters "KKK" on a carpet with a fire extinguisher). Other instances of macroaggressions have occurred since February, 1995. Three are particularly noteworthy: the incident involving five White Greenwich, Connecticut high school students who placed a coded message in their yearbook thai spelled out "Kill All Niggers," Jacques Steinberg, Racist Message Reveals Rift, N.Y. TIMES, June 21, 1995, at B4; the videotaped Whites-only picnic attended by Alcohol, Tobacco, and Firearms agents that featured racist slogans and a sign that read, "Nigger CheckPoint," Tim Weiner, F.B.I. Says at Least 7 Agents Attended Gathering Displaying Racist Paraphernalia, N.Y. TIMES, July 19, 1995, at A12; and the computer game "Freedom!" in which the players take on the role of Black slaves. Players begin the game as illiterate slaves, referred to as "boy." The game, sold by the Minnesota Educational Computing Corporation, was one of the computer games available for students to play in the Tempe, Arizona Elementary School District. School's Computer Game on Slavery Prompts Suit, N.Y. TIMES, Aug. 28, 1995, at A10.
94. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church Break-In, WASH. POST, Feb. 23, 1995, at Md. 3 (reporting that two youths were charged with burglary for breaking into a church and spraying the letters "KKK" on a carpet with a fire extinguisher). Other instances of macroaggressions have occurred since February, 1995. Three are particularly noteworthy: the incident involving five White Greenwich, Connecticut high school students who placed a coded message in their yearbook thai spelled out "Kill All Niggers," Jacques Steinberg, Racist Message Reveals Rift, N.Y. TIMES, June 21, 1995, at B4; the videotaped Whites-only picnic attended by Alcohol, Tobacco, and Firearms agents that featured racist slogans and a sign that read, "Nigger CheckPoint," Tim Weiner, F.B.I. Says at Least 7 Agents Attended Gathering Displaying Racist Paraphernalia, N.Y. TIMES, July 19, 1995, at A12; and the computer game "Freedom!" in which the players take on the role of Black slaves. Players begin the game as illiterate slaves, referred to as "boy." The game, sold by the Minnesota Educational Computing Corporation, was one of the computer games available for students to play in the Tempe, Arizona Elementary School District. School's Computer Game on Slavery Prompts Suit, N.Y. TIMES, Aug. 28, 1995, at A10.
95. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church Break-In, WASH. POST, Feb. 23, 1995, at Md. 3 (reporting that two youths were charged with burglary for breaking into a church and spraying the letters "KKK" on a carpet with a fire extinguisher). Other instances of macroaggressions have occurred since February, 1995. Three are particularly noteworthy: the incident involving five White Greenwich, Connecticut high school students who placed a coded message in their yearbook thai spelled out "Kill All Niggers," Jacques Steinberg, Racist Message Reveals Rift, N.Y. TIMES, June 21, 1995, at B4; the videotaped Whites-only picnic attended by Alcohol, Tobacco, and Firearms agents that featured racist slogans and a sign that read, "Nigger CheckPoint," Tim Weiner, F.B.I. Says at Least 7 Agents Attended Gathering Displaying Racist Paraphernalia, N.Y. TIMES, July 19, 1995, at A12; and the computer game "Freedom!" in which the players take on the role of Black slaves. Players begin the game as illiterate slaves, referred to as "boy." The game, sold by the Minnesota Educational Computing Corporation, was one of the computer games available for students to play in the Tempe, Arizona Elementary School District. School's Computer Game on Slavery Prompts Suit, N.Y. TIMES, Aug. 28, 1995, at A10.
96. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church Break-In, WASH. POST, Feb. 23, 1995, at Md. 3 (reporting that two youths were charged with burglary for breaking into a church and spraying the letters "KKK" on a carpet with a fire extinguisher). Other instances of macroaggressions have occurred since February, 1995. Three are particularly noteworthy: the incident involving five White Greenwich, Connecticut high school students who placed a coded message in their yearbook thai spelled out "Kill All Niggers," Jacques Steinberg, Racist Message Reveals Rift, N.Y. TIMES, June 21, 1995, at B4; the videotaped Whites-only picnic attended by Alcohol, Tobacco, and Firearms agents that featured racist slogans and a sign that read, "Nigger CheckPoint," Tim Weiner, F.B.I. Says at Least 7 Agents Attended Gathering Displaying Racist Paraphernalia, N.Y. TIMES, July 19, 1995, at A12; and the computer game "Freedom!" in which the players take on the role of Black slaves. Players begin the game as illiterate slaves, referred to as "boy." The game, sold by the Minnesota Educational Computing Corporation, was one of the computer games available for students to play in the Tempe, Arizona Elementary School District. School's Computer Game on Slavery Prompts Suit, N.Y. TIMES, Aug. 28, 1995, at A10.
97. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church Break-In, WASH. POST, Feb. 23, 1995, at Md. 3 (reporting that two youths were charged with burglary for breaking into a church and spraying the letters "KKK" on a carpet with a fire extinguisher). Other instances of macroaggressions have occurred since February, 1995. Three are particularly noteworthy: the incident involving five White Greenwich, Connecticut high school students who placed a coded message in their yearbook thai spelled out "Kill All Niggers," Jacques Steinberg, Racist Message Reveals Rift, N.Y. TIMES, June 21, 1995, at B4; the videotaped Whites-only picnic attended by Alcohol, Tobacco, and Firearms agents that featured racist slogans and a sign that read, "Nigger CheckPoint," Tim Weiner, F.B.I. Says at Least 7 Agents Attended Gathering Displaying Racist Paraphernalia, N.Y. TIMES, July 19, 1995, at A12; and the computer game "Freedom!" in which the players take on the role of Black slaves. Players begin the game as illiterate slaves, referred to as "boy." The game, sold by the Minnesota Educational Computing Corporation, was one of the computer games available for students to play in the Tempe, Arizona Elementary School District. School's Computer Game on Slavery Prompts Suit, N.Y. TIMES, Aug. 28, 1995, at A10.
98. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church Break-In, WASH. POST, Feb. 23, 1995, at Md. 3 (reporting that two youths were charged with burglary for breaking into a church and spraying the letters "KKK" on a carpet with a fire extinguisher). Other instances of macroaggressions have occurred since February, 1995. Three are particularly noteworthy: the incident involving five White Greenwich, Connecticut high school students who placed a coded message in their yearbook thai spelled out "Kill All Niggers," Jacques Steinberg, Racist Message Reveals Rift, N.Y. TIMES, June 21, 1995, at B4; the videotaped Whites-only picnic attended by Alcohol, Tobacco, and Firearms agents that featured racist slogans and a sign that read, "Nigger CheckPoint," Tim Weiner, F.B.I. Says at Least 7 Agents Attended Gathering Displaying Racist Paraphernalia, N.Y. TIMES, July 19, 1995, at A12; and the computer game "Freedom!" in which the players take on the role of Black slaves. Players begin the game as illiterate slaves, referred to as "boy." The game, sold by the Minnesota Educational Computing Corporation, was one of the computer games available for students to play in the Tempe, Arizona Elementary School District. School's Computer Game on Slavery Prompts Suit, N.Y. TIMES, Aug. 28, 1995, at A10.
99. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church Break-In, WASH. POST, Feb. 23, 1995, at Md. 3 (reporting that two youths were charged with burglary for breaking into a church and spraying the letters "KKK" on a carpet with a fire extinguisher). Other instances of macroaggressions have occurred since February, 1995. Three are particularly noteworthy: the incident involving five White Greenwich, Connecticut high school students who placed a coded message in their yearbook thai spelled out "Kill All Niggers," Jacques Steinberg, Racist Message Reveals Rift, N.Y. TIMES, June 21, 1995, at B4; the videotaped Whites-only picnic attended by Alcohol, Tobacco, and Firearms agents that featured racist slogans and a sign that read, "Nigger CheckPoint," Tim Weiner, F.B.I. Says at Least 7 Agents Attended Gathering Displaying Racist Paraphernalia, N.Y. TIMES, July 19, 1995, at A12; and the computer game "Freedom!" in which the players take on the role of Black slaves. Players begin the game as illiterate slaves, referred to as "boy." The game, sold by the Minnesota Educational Computing Corporation, was one of the computer games available for students to play in the Tempe, Arizona Elementary School District. School's Computer Game on Slavery Prompts Suit, N.Y. TIMES, Aug. 28, 1995, at A10.
100. In addition to the four instances cited above, see, e.g., Campus Protest Against Slurs, N.Y. TIMES, Feb. 16, 1995, at A22 (reporting racist hate mail left in the mail boxes of University of California, Boalt Hall minority law students - "Rejoice you crybaby niggers. It's affirmative action month. . . . When I see you in class it bugs the hell out of me because you're taking the seat of someone qualified"); Confederate Flag Stays, WASH. POST, Feb. 19, 1995, at A12 (reporting that the South Carolina Attorney General, reversing previous opinion, determined that the confederate flag should be allowed to fly despite longstanding protests against it as an inappropriate reminder of slavery); News in Brief, WASH. POST, Feb. 17, 1995, at A2 (reporting that the Mississippi state senate in 1995, 100 years after federal adoption, ratified the Thirteenth Amendment to the U.S. Constitution which outlaws slavery); TV Column, WASH. POST, Feb. 1, 1995, at D10 (reporting White Detroit weather reporter fired after likening a Black man to a gorilla); 2 Charged in Anne Arundel Church
101. Brown-Scott, supra note 52, at 1209.
102. Id.
103. Id. at 1213.
104. Id. at 1209.
105. Id. at 1212.
106. Mari Matsuda, Public Response to Racist Speech, in WORDS THAT WOUND, supra note 49, at 25 (discussing the impact of race-based hate speech upon its victims) (emphasis added).
107. Noted historian John Henrik Clarke states (referring to the Bernhard Goetz case): "'The lack of citizenship for black America has reached a point where we can't lie about it anymore . . . . We cannot tell the world anymore about our great democracy and melting pot theory when there is an African nation existing within the United States that is still lacking full citizenship.'" Susan Taylor Martin, A Case of Hate: Attack on N.Y. Girl, and Reaction to It, Stirs Racial Tensions, ST. PETERSBURG TIMES, Mar. 20, 1988, at 1A.
108. Williams, supra note 50, at 151.
109. Davis, supra note 6, at 1577 (emphasis added).
110. Brown-Scott, supra note 52, at 1213-14.
111. Id. at 1224. For an interesting discussion of White privilege, see Peggy McIntosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women's Studies, in RACE, CLASS, AND GENDER 76-87 (Margaret L. Anderson & Patricia H. Collins eds., 1995); see also Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1994).
112. Id. at 1224. For an interesting discussion of White privilege, see Peggy McIntosh, White Privilege and Male Privilege: A Personal Account of Coming to See Correspondences Through Work in Women's Studies, in RACE, CLASS, AND GENDER 76-87 (Margaret L. Anderson & Patricia H. Collins eds., 1995); see also Cheryl I. Harris, Whiteness as Property, 106 HARV. L. REV. 1707 (1994).
113. Referring to the Tanya Dacri racial hoax, one commentator states, "[P]eople excused [her] story, because she was crazy. She may have been crazy, but she understood the state of U.S. race relations. She understood that a White woman raising the specter of crazed, violent Black men would strike a responsive chord in the press and with the general public." Williamson, supra note 32, at A6.
114. Emile Durkheim defined a social fact as one which is external to the individual and is coercive in nature. EMILE DURKHEIM, THE RULES OF SOCIOLOGICAL METHOD 50-59 (1982).
115. See supra note 12 and accompanying text. Courts have been loathe to accord legal relevance to past racial discrimination. See, e.g., McCleskey v. Kemp, 481 U.S. 279 (1987) (holding that statistical proof of racial discrimination in capital sentencing is insufficient to establish a violation of the Equal Protection Clause); Cato v. United States, No. 94-17102 (9th Cir. Dec. 4, 1995) (holding that African-Americans not entitled to reparations under the U.S. Constitution). Further, there has been a shift from race-conscious remedies to race-neutral ones. See Gary Peller, Criminal Law, Race, and the Ideology of Bias: Transcending the Critical Tools of the Sixties, 67 TUL. L. REV. 2231 (1993), for a detailed discussion of color-conscious versus color-blind approaches to criminal law.
116. This must be part of a larger effort to present an accurate picture of race and crime. See, e.g., Richard Delgado, Rodrigo's Eighth Chronicle: Black Crime, White Fears - On the Social Construction of Threat, 80 VA. L. REV. 503 (1994) (providing an in-depth analysis of the costs of "White crime" - compared with the costs of "Black crime" - as well as White crime's causes and its relationship to white collar crime); see also Russell, supra note 42. In addition to the enactment of new laws, affirmative race law encompasses the vigorous enforcement of existing laws which promote racial justice. For instance, sanctioning law enforcement officials who have violated the rights of Black citizens would constitute affirmative race law.
117. In 1992, Black households had the highest rate of victimization - 199 per 1000 households. This contrasts with 147 per 1000 households for Whites. BUREAU OF JUSTICE STATISTICS, supra note 21, at 20. The level of victimization for young Black males is particularly stark. They "experience[] violent crime at a rate significantly higher than the rates for other age or racial groups. . . . Males age 16 to 19 were particularly at risk; their violent victimization rate was almost double the rate for white males . . . ." LISA D. BASTIAN & BRUCE M. TAVLOR, BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, YOUNGBLACK MALE VICTIMS (1994).
118. See, e.g., Jan Glidewell, Racial Hoax Shows Our Inner Bias, ST. PETERSBURG TIMES, Nov. 20, 1994, at 1 (stating that "even [Union, South Carolina police chief] Wells' masterful handling of the situation could not help but leave black people everywhere angry and hurt").
119. See, e.g., Les Payne, A Rape Hoax Stirs up Hate, NEWSDAY, Dec. 16, 1990, at 6 (concluding that "crying wolf . . . should be severely punished").
120. Figures for 1993 show that Whites comprised 67% of total arrests. FEDERAL BUREAU OF INVESTIGATION, supra note 38, at 235.
121. James Q. Wilson, To Prevent Riots, Reduce Black Crime, WALL ST. J., May 6, 1992, at A16; see also BYRON ROTH, PRESCRIPTION FOR FAILURE (1994).
122. James Q. Wilson, To Prevent Riots, Reduce Black Crime, WALL ST. J., May 6, 1992, at A16; see also BYRON ROTH, PRESCRIPTION FOR FAILURE (1994).
123. For a thoughtful discussion of the relationship between White racism and Black crime, see DERRICK BELL, AND WE ARE NOT SAVED: THE ELUSIVE QUEST FOR RACIAL JUSTICE 245-48 (1988).
124. See, e.g., ELLIS COSE, THE RAGE OF A PRIVILEGED CLASS 93-95 (1993).
125. Id.
126. United States v. Clary, 846 F. Supp. 768 (E.D. Mo.), rev'd, 34 F.3d 709 (8th Cir. 1994) (holding that federal sentencing guidelines which provide a harsher penalty for crack cocaine possession than for the same amount of powder cocaine are without legal justification, and noting that the law has grossly disproportionate impact upon minorities).
127. Lawrence W. Sherman, Defiance, Deterrence, and Irrelevance: A Theory of the Criminal Sanction, 30 J. RES. CRIME & DELINQ. 445 (1993).
128. JOHN BRAITHWAITE, CRIME, SHAME AND REINTEGRATION (1989).
129. Id. at 100-01.
130. Id. at 101.
131. See, e.g., Thomas J. Bernard, Angry Aggression Among the "Truly Disadvantaged", 28 CRIMINOLOGY 73, 80 (1990) ("Racial and ethnic discrimination involves intentionally harming, threatening, or insulting people and intentionally blocking their goal-directed activities[.]" (citations omitted)); Gresham M. Sykes & David Matza, Techniques of Neutralization: A Theory of Delinquency, 22 AM. SOC. REV. 664 (1957) (stating that techniques include "denial of injury" and "condemnation of the condemners").
132. See, e.g., Thomas J. Bernard, Angry Aggression Among the "Truly Disadvantaged", 28 CRIMINOLOGY 73, 80 (1990) ("Racial and ethnic discrimination involves intentionally harming, threatening, or insulting people and intentionally blocking their goal-directed activities[.]" (citations omitted)); Gresham M. Sykes & David Matza, Techniques of Neutralization: A Theory of Delinquency, 22 AM. SOC. REV. 664 (1957) (stating that techniques include "denial of injury" and "condemnation of the condemners").
133. Sherman, supra note 93, at 464.
134. This process essentially turns labelling theory on its head. Labelling theory predicts that once an individual has had a formal contact with the criminal justice system and is thereby labelled deviant, he is likely to act in conformity with the label. Therefore, labelling theorists argue, the deviant label should be avoided. Today, because Black males are presumed deviant, they are treated as deviant and may subsequently act in ways which conform to the label. See, e.g., GEORGE B. VOLD & THOMAS J. BERNARD, THEORETICAL CRIMINOLOGY 252-57 (3d ed. 1986).
135. ANTHONY J. LEMELLE, JR., BLACK MALE DEVIANCE (1995).
136. Id. at 40.
137. Id. at 41 (emphasis added).
138. Id. at 42.
139. English researcher John Pitts refers to this practice as the difference between "epic" versus "lyric" criminology. Epic criminology, which describes much of U.S. criminology, focuses upon cultural characteristics, such as childrearing patterns, to explain crime. Conversely, lyric criminology emphasizes the characteristics of criminals (e.g., socioeconomic status, education level) to explain crime. John Pitts, Thereotyping: Anti-racism, Criminology, and Black Young People, in RACISM AND CRIMINOLOGY 108 (Dee Cook & Barbara Hudson eds., 1993).
140. For a supporting political theory, see Thomas Simon, A Theory of Social Injustice, in THE RADICAL PHILOSOPHY OF LAW 54-72 (David S. Caudill & Steven J. Gold eds., 1995). Simon sketches the outline of a theory of social injustice. His theory seeks to "catalogu[e] and compar[e] the various forms of injustice." Id. at 56. Simon notes that it is critical to the success of such a theory "for people to first get straight on what is wrong." Id. at 57. Once harm is acknowledged, compensation and restitution can be made available. Simon also discusses the various reactions to powerlessness, including rage, which can take the form of harming an innocent victim. Simon's central theoretical focus is upon the entrenched powerlessness of certain groups (e.g., minorities). He concludes that "[w]hen group powerlessness cuts across generations, when it becomes a . . . defining feature of the group, it should receive top priority on the democratic agenda." Id. at 71.
141. Williams, supra note 50, at 127-29.
142. "I was enraged. At that moment I literally wanted to break all of the windows in the store and take lots of sweaters . . . ." Id. at 128.
143. PATRICIA J. WILLIAMS, THE ALCHEMY OF RACE AND RIGHTS 46 (1991) (recounting how she typed up a detailed account of the incident, made it into a poster, and attached it to the United Colors of Benneton store window).
144. Id. (emphasis added).
145. Carol Castenada, In Kentucky, Confederate Flag is Fatal, USA TODAY, Jan. 30, 1995, at 4A. Two men have been convicted of murder and sentenced to life in prison. 2 Convicted in Killing over Confederate Flag, N.Y. TIMES, Jan. 13, 1996, at 7.
146. Carol Castenada, In Kentucky, Confederate Flag is Fatal, USA TODAY, Jan. 30, 1995, at 4A. Two men have been convicted of murder and sentenced to life in prison. 2 Convicted in Killing over Confederate Flag, N.Y. TIMES, Jan. 13, 1996, at 7.
147. Neil MacFarquhar, Angry Calm at the Services for Teen-Ager Slain by Police, N.Y. TIMES, Feb. 27, 1995, at B5 (emphasis added).
148. Brown-Scott, supra note 52, at 1216-17.
149. Tom Gorman & Bettina Boxall, Family Tells of Slain Gunman's Anger at Koon, L.A. TIMES, Nov. 25, 1995 at A1.
150. See, e.g., INDEPENDENT COMM'N ON THE LOS ANGELES POLICE DEP'T, REPORT OF THE INDEPENDENT COMMISSION ON THE LOS ANGELES POLICE DEPARTMENT (1995) (commission report stemming from the March, 1991 beating of Rodney King); Joe Domanick, Fuhrman Is Not an Exception, WASH. POST, Sept. 1, 1995, at A25.
151. See, e.g., INDEPENDENT COMM'N ON THE LOS ANGELES POLICE DEP'T, REPORT OF THE INDEPENDENT COMMISSION ON THE LOS ANGELES POLICE DEPARTMENT (1995) (commission report stemming from the March, 1991 beating of Rodney King); Joe Domanick, Fuhrman Is Not an Exception, WASH. POST, Sept. 1, 1995, at A25.
152. See, e.g., Debbie Goldberg, Police Scandal Creates Storm in Philadelphia, WASH. POST, Aug. 17, 1995, at A3; Don Terry, Philadelphia Shaken by Criminal Police Officers, N.Y. TIMES, Aug. 28, 1995, at A1.
153. See, e.g., Debbie Goldberg, Police Scandal Creates Storm in Philadelphia, WASH. POST, Aug. 17, 1995, at A3; Don Terry, Philadelphia Shaken by Criminal Police Officers, N.Y. TIMES, Aug. 28, 1995, at A1.
154. Goldberg, supra note 115, at A3.
155. See, e.g., James Bennet, A Woman's Plunge to Death Transfixes Detroit, N.Y. TIMES, Aug. 23, 1995, at A1. Bennett writes about a Black woman who was involved in two minor traffic accidents. The car she hit was driven by a Black man who gave chase. She was forced to stop and was dragged out of her car by the driver and his two passengers. Her clothes were ripped off and she was beaten. To avoid further assault, the woman jumped off a bridge to her death.
156. Some counties have experienced an increase of assaults against police officers. See, e.g., Jon Jeter, Officer's Slaying Not Tied to a Fight, P. G. Police Say, WASH. POST, May 4, 1995, at C1.
157. The Gallup Poll data for 1993 reported that in response to the question, "Do you think that the American justice system is biased against Black people or not?" Thirty-three percent of Whites responded yes while more than twice as many Blacks (68%) did so. Gallup Poll data for the last decade show a burgeoning gulf between how Blacks and Whites view the police. Respondents were asked, "How would you rate the honesty and ethical standards of [the police]?" In 1985, 48% of the Whites stated "very high/high," while only 35% of Blacks said "very high/high." BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1985, at 159 (Timothy J. Flanagan & Edmund F. McGarrell eds., 1986). By 1993, the gap between Whites and Blacks had doubled: 53% of Whites said "very high/high" and 28% of Blacks said "very high/high." BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STASTISTICS - 1993, at 165 (Kathleen Maguire & Ann L. Pastore eds., 1994). The jubilant reaction to the Simpson verdict, by some sectors of the Black community, makes manifest how little faith many Blacks have in the criminal justice system. Professor Paul Butler offers "racially based jury nullification" as one way to empower Black jurors and bridge the racial gap in perception of fairness in the justice system. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995).
158. The Gallup Poll data for 1993 reported that in response to the question, "Do you think that the American justice system is biased against Black people or not?" Thirty-three percent of Whites responded yes while more than twice as many Blacks (68%) did so. Gallup Poll data for the last decade show a burgeoning gulf between how Blacks and Whites view the police. Respondents were asked, "How would you rate the honesty and ethical standards of [the police]?" In 1985, 48% of the Whites stated "very high/high," while only 35% of Blacks said "very high/high." BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1985, at 159 (Timothy J. Flanagan & Edmund F. McGarrell eds., 1986). By 1993, the gap between Whites and Blacks had doubled: 53% of Whites said "very high/high" and 28% of Blacks said "very high/high." BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STASTISTICS - 1993, at 165 (Kathleen Maguire & Ann L. Pastore eds., 1994). The jubilant reaction to the Simpson verdict, by some sectors of the Black community, makes manifest how little faith many Blacks have in the criminal justice system. Professor Paul Butler offers "racially based jury nullification" as one way to empower Black jurors and bridge the racial gap in perception of fairness in the justice system. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995).
159. The Gallup Poll data for 1993 reported that in response to the question, "Do you think that the American justice system is biased against Black people or not?" Thirty-three percent of Whites responded yes while more than twice as many Blacks (68%) did so. Gallup Poll data for the last decade show a burgeoning gulf between how Blacks and Whites view the police. Respondents were asked, "How would you rate the honesty and ethical standards of [the police]?" In 1985, 48% of the Whites stated "very high/high," while only 35% of Blacks said "very high/high." BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STATISTICS - 1985, at 159 (Timothy J. Flanagan & Edmund F. McGarrell eds., 1986). By 1993, the gap between Whites and Blacks had doubled: 53% of Whites said "very high/high" and 28% of Blacks said "very high/high." BUREAU OF JUSTICE STATISTICS, U.S. DEP'T OF JUSTICE, SOURCEBOOK OF CRIMINAL JUSTICE STASTISTICS - 1993, at 165 (Kathleen Maguire & Ann L. Pastore eds., 1994). The jubilant reaction to the Simpson verdict, by some sectors of the Black community, makes manifest how little faith many Blacks have in the criminal justice system. Professor Paul Butler offers "racially based jury nullification" as one way to empower Black jurors and bridge the racial gap in perception of fairness in the justice system. Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L.J. 677 (1995).
160. See, e.g., U-Md Combines Black Scholarships with 2nd Program, WASH. POST, Feb. 6, 1995, at B3 (highlighting actions taken since a federal appeals court in Podberesky v. Kirwan, 38 F.3d 147 (4th Cir. 1995), held that the University of Maryland's Benjamin Banneker scholarship program for incoming Black freshman violated the Equal Protection Clause).
161. See, e.g., B. Drummond Ayres, Jr., Conservatives Forge New Strategy to Challenge Affirmative Action, N.Y. TMES, Feb. 16, 1995, at A1 (referring to the California ballot initiative against state affirmative action programs). Such political maneuvers are examples of what Professor Derrick Bell calls "the principle of involuntary sacrifice." He uses this term to describe how subordinated racial groups are used as political tools to benefit those racial groups in power. The sacrifice takes place so that "identifiably different groups of Whites" can establish or reestablish a relationship. BELL, supra note 41, § 1.9, at 29-30. Specifically, in the affirmative action debate, Blacks are being used by politicians to show that they support color-blind laws at the expense of Black progress. It looks as though this is also being done at the expense of White women - the primary benefactors of affirmative action. Id.
162. See, e.g., Dan Stein & Herman Schwartz, Entitlements for Undocumented Aliens, A.B.A. J., Feb. 1995, at 42 (discussing California's Proposition 187).
163. See, e.g., MARC MAUER & TRACY HULING, THE SENTENCING PROJECT, YOUNG BLACK AMERICANS AND THE CRIMINAL JUSTICE SYSTEM: FIVE YEARS LATER 1-2 (1995).
164. Katharine Q. Seelye, House Backs Bill to Require Restitution from Criminals, N.Y. TIMES, Feb. 8, 1995, at 16A ("[T]he Republicans defeated a Democratic amendment that simply reiterated the words of the Fourth Amendment to the Constitution. The vote was 303 to 121.").
165. See Adubato, supra note 32.
166. Douglas H. Palmer, Mayor of Trenton, N.J., Press Release, Jan. 12, 1995.
167. The police handling of the Harris case, supra note 15, stands in marked contrast. In the Harris case, the police "didn't go on a witch hunt for an African American male." Police Say Md. Man Had Fiancee Killed, Blamed Black Robber, supra note 15, at B6.
168. Telephone Interview with Hugh Munn, South Carolina State Law Enforcement Division (Aug. 15, 1995); see also Jo-Ann Clegg, Susan Smith Should Pay Dearly: Unfit Parents Should Take Heed, NORFOLK VIRGINIAN-PILOT, Nov. 11, 1994, at 7 ("For more than a week she lied to the authorities, thus triggering an investigation that cost tax payers millions of dollars and had thousands of people searching . . . .").
169. Telephone Interview with Hugh Munn, supra note 128.
170. Telephone Interview with Linda Jenkins, Deputy Clerk Advisor, Union, S.C. Sheriff's Office (Aug. 15, 1995).
171. See, e.g., CAL. PENAL CODE § 148.5 (West Supp. 1995); MD. ANN. CODE art. 27, § 150 (1994); MASS. ANN. LAWS ch. 269, § 13A (Law. Co-op. 1992).
172. See supra notes 19-21 and accompanying text.
173. The assistant county prosecutor filed a $30 million defamation suit against Tawana Brawley and her advisors. The prosecutor won a default judgment. See Brawley Case Ruling Favors Ex-Prosecutor, N.Y. TIMES, May 10, 1991, at B3. Further, steps were taken to sanction her attorneys for obstruction of justice. See, e.g., John Bonomi, About Justice: Odd Bedfellows Before the Bar, NEWSDAY, July 10, 1990, at 48.
174. The assistant county prosecutor filed a $30 million defamation suit against Tawana Brawley and her advisors. The prosecutor won a default judgment. See Brawley Case Ruling Favors Ex-Prosecutor, N.Y. TIMES, May 10, 1991, at B3. Further, steps were taken to sanction her attorneys for obstruction of justice. See, e.g., John Bonomi, About Justice: Odd Bedfellows Before the Bar, NEWSDAY, July 10, 1990, at 48.
175. Professor Frederick Lawrence prefers the term "bias crime" rather than "hate crime," to describe more accurately the perpetrators' actions. Frederick M. Lawrence, Resolving the Hate Crimes/Hate Speech Paradox: Punishing Bias Crimes and Protecting Racist Speech, 68 NOTRE DAME L. REV. 673, 673-74 n.1 (1993).
176. Id. at 682.
177. 505 U.S. 377 (1992).
178. The statute provided: Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swastika, which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor. Id. at 380.
179. Id. at 396.
180. The ADL model statute provides: A. A person commits the crime of intimidation if, by reason of the actual or perceived race, color, religion, national origin or sexual orientation of another individual or group of individuals, he violates section [] of the Penal Code (insert Code provision for criminal trespass, criminal mischief, harassment, menacing, assault and/or any other appropriate statutorily proscribed criminal conduct). B. Intimidation is a misdemeanor/felony (the degree of criminal liability should be made at least one degree more serious than that imposed for commission of the offense). ANTI-DEFAMATION LEAGUE, HATE CRIMES STATUTES: A STATUS REPORT (1991).
181. Hate Crimes Sentencing Enhancement Act of 1993, Pub. L. No. 103-322, 108 Stat. 2096 (1994).
182. 113 S. Ct. 2194 (1993). In October, 1989, Mitchell and some of his friends discussed a scene from the movie "Mississippi Burning." In the scene, a White man beat a young Black boy who was praying. After their conversation, Mitchell and his friends decided to "move on some white people," and severely beat a White boy who was passing by. Id. at 2196.
183. WIS. STAT. § 939.645 (1994). Notably, the five-year penalty enhancement provision exceeds the two-year maximum sentence for the crime of aggravated battery.
184. Mitchell, 113 S. Ct. at 2201.
185. Id.
186. Professor Lawrence refers to the free-speech-versus-bias-crime debate as a "false paradox." He states: The apparent paradox of seeking to punish the perpetrators of racially motivated violence while being committed to protecting the bigot's right to express racism is a false paradox. Put simply, we are making this problem harder than it needs to be. We must focus on the basic distinction between bias crimes - such as racially motivated assaults or vandalism - and racist speech. Lawrence, supra note 134, at 676.
187. See, e.g., Brandenburg v. Ohio, 395 U.S. 444 (1969).
188. This is an updated version of Justice Oliver Wendell Holmes' pronouncement that one does not have the right to "shout fire in a theatre." Schenck v. United States, 249 U.S. 47, 52 (1919).
189. Adubato, supra note 32, at B7.
190. N.J. Assembly Bill 2553, 206th Leg., 2d Sess. (1995), available in WESTLAW, NJ-Bills Database. False incrimination absent bias is a fourth-degree offense, N.J. STAT. ANN. § 2C:28-4(a) (West 1995), punishable by imprisonment for a maximum of eight months, id. § 2C:43-6(a)(4), and/or a $7500 fine. Id. § 2C:43-3(b). The penalty for a third-degree offense is imprisonment for three to five years, id. § 2C:43-6(a)(3), and/or a fine of $7500. Id. § 2C:43-3(b). Absent bias, the filing of a fictitious police report would be a disorderly persons charge, id. § 2C:28-4(b), which is not considered a crime in New Jersey. Id. § 2C:1-4(b). No official action was taken on the bill during the 1994-1995 legislative session. The bill, renumbered A5 61-1996, is now in the Assembly Judiciary Committee. Telephone Interview with Dominick DeMarco, Legislative Aide to Congresswoman and bill sponsor Shirley Turner (February 2, 1996).
191. There are a number of other possible racial combinations, such as White-on-Latino and Latino-on-Black. As argued throughout this Article, the perception and stereotype of Blacks as criminal is so deeply entrenched and widespread that special legal focus should be given to this problem. Latinos, in particular, also face negative criminal stereotyping. See, e.g., MANN, supra note 39, at 101-02. Although the discussion herein is confined to racial hoaxes, the New Jersey law has other categories, including ethnicity, sexual orientation, and religion. N.J. Assembly Bill 2553, 206th Leg., 2d Sess. (1995), available in WESTLAW, NJ-Bills Database.
192. In February 1996, Gerald Hill, a Black man, was charged in a 1200-count indictment with child abuse. Specifically, Hill was accused of abusing his four children, ages 5 to 12, over a five-year period. The charges allege sexual abuse, injecting the children with cocaine, and feeding them roaches and rats. Just days following the indictment, three of the children stepped forward to recant their allegations, saying that a relative had badgered them into making the allegations. If the charges are false, this case would be an example of a Black-on-Black racial hoax. Bond in Abuse Case Stands; Judge Not Swayed by Kids' Recantation of Charges, CHI. TRIB., Feb. 10, 1996, at 5.
193. Glidewell, supra note 85, at 1.
194. See, e.g., Laure Weber Brooks, Police Discretionary Behavior, in CRITICAL ISSUES IN POLICING 140, 154-55 (Roger G. Dunham & Geoffrey P. Alpert eds., 2d ed. 1993).
195. FEDERAL BUREAU OF INVESTIGATION, supra note 39, at 235.
196. BUREAU OF JUSTICE STATISTICS, supra note 21, at 61.
197. Matsuda, supra note 74, at 36.
198. Id.
199. Marc Fleischauer, Teeth for a Paper Tiger: A Proposal to Add Enforceability to Florida's Hate Crimes Act, 17 FLA. ST. U. L. REV. 697, 703 (1990).
200. Id. at 706.
201. 113 S. Ct. 2194 (1993).
202. See supra notes 58-62 and accompanying text.
203. A Black man named Willie Bennett was the initial suspect in the Charles Stuart case. See supra notes 22-25 and accompanying text.
204. Lawrence, supra note 134, at 698.
205. N.J. Assembly Bill 2553, 206th Leg., 2d Sess. (1995), available in WESTLAW, NJ-Bills Database.
206. This could be reasonably expanded to include Hispanics/Latinos who also have the dubious distinction of symbolizing crime. See, e.g., MANN, supra note 39, at 101-02.
207. Cf. Tanya Kateri Hernandez, Bias Crimes: Unconscious Racism in the Prosecution of "Racially Motivated Violence", 99 YALE L.J. 845, 852-53 (1990) (arguing that prosecutors are less likely to pursue hate crimes with minority victims).
208. See Fleischauer, supra note 158, at 703.
209. Id. at 707 n.63.
210. See supra part I.B.
211. See, e.g., Adarand Constructors v. Pena, 115 S. Ct. 2097 (1995) (mandating heightened legal proof to support a set-aside contract program by requiring the government to demonstrate a narrowly tailored, compelling state interest, based upon clear evidence of past discrimination).
212. See MODEL PENAL CODE § 2.02 (1992).
213. N.J. Assembly Bill 2553, 206th Leg., 2d Sess. (1995), available in WESTLAW, NJ-Bills Database.
214. Charles Lawrence, The Id, the Ego, and Equal Protection: Reckoning with Unconscious Racism, 39 STAN. L. REV. 317, 322 (1987) (citations omitted).
215. The following are classified as crime index offenses: murder and nonnegligent homicide, burglary, arson, forcible rape, robbery, motor vehicle theft, aggravated assault, and theft. FEDERAL BUREAU OF INVESTIGATION, supra note 39, at 380.
216. See N.J. Assembly Bill 2553, 206th Leg., 2d Sess. (1995), available in WESTLAW, NJ-Bills Database.
217. Id.
218. Professor Richard Abel has suggested that an apology is an appropriate sanction for hate speech. RICHARD ABEL, SPEECH AND RESPECT 28 (1995). For a critique of this argument, see RICHARD DELGADO & JEAN STEFANCIC, APOLOGIZE AND MOVE ON? (1995).
219. Professor Richard Abel has suggested that an apology is an appropriate sanction for hate speech. RICHARD ABEL, SPEECH AND RESPECT 28 (1995). For a critique of this argument, see RICHARD DELGADO & JEAN STEFANCIC, APOLOGIZE AND MOVE ON? (1995).
220. Raspberry, supra note 26. Following the George Washington University rape hoax, see supra notes 19-21, the school president, in a letter addressed to the university community, wrote, "We must understand that our black students, faculty, staff and neighbors have been given offense and reason to feel concerned and anxious. They were special victims of the hoax." Barras, supra note 20, at B4. Smith's brother did issue an apology. See Parente, supra note 28, at A66.
221. More than one entity could be asked to apologize - for example, the media, the police, the mayor, and the defendant.
222. An educational component would also be useful for the racial hoax. Specifically, a requirement that the perpetrator take a "crash course" on crime statistics. This would include Uniform Crime Reports data on actual arrests, crime rates by race, and the prevalence of intraracial versus interracial crime. Whether this should be legally mandated remains unclear. This could be part of an criminal justice information packet provided upon conviction.
223. Hate Crime Statistics Act, 28 U.S.C. 534 (Supp. V 1993).
224. Id.
225. Lawrence, supra note 134, at 721.
226. The Mitchell Court noted that "motive plays the same role under the Wisconsin statute as it does under the federal and state anti-discrimination laws." Wisconsin v. Mitchell, 113 S. Ct. 2194, 2200 (1993); see also Leading Cases, 107 HARV. L. REV. 144, 238-39 (1993).