Self-defense and the mistaken racist

New Criminal Law Review

Volumn 11, Issue 1, 2008, Pages 119-171

  Garvey, Stephen P ^a  

^a MIT Sloan School of Management   (United States)

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EID: 43849085005     PISSN: 19334192     EISSN: 19334206     Source Type: Journal    
DOI: 10.1525/nclr.2008.11.1.119     Document Type: Conference Paper

References (282)

1. George P. Fletcher, A Crime of Self-Defense: Bernhard Goetz and the Law on Trial 1 (1988).
2. The statement of the facts that follows is based primarily on the principal opinion of the New York Court of Appeals, which was in turn based heavily on pretrial statements Goetz made to the police. People v. Goetz, 497 N.E.2d 41, 43-44 (N.Y. 1986). The Court of Appeals reversed a trial-court order dismissing certain counts of a second grand jury's multiple-count indictment for attempted murder, assault, illegal possession of a firearm, and reckless endangerment. See People v. Goetz, 502 N.Y.S.2d 577 (Sup. Ct.), aff'd, 501 N.Y.S.2d 326 (N.Y. App. Div.), rev'd, 497 N.E.2d 41 (N.Y. 1986). Goetz was finally convicted on one count of criminal possession of a firearm in the third degree. He was sentenced to one year in prison, five years' probation, and a $5,000 fine. See People v. Goetz, 529 N.Y.S.2d 782 (App. Div.), aff'd, 532 N.E.2d 1273 (N.Y. 1988)
3. see also Ronald Sullivan, Goetz Is Given One-Year Term on Gun Charge, N.Y Times, Jan. 14, i989, at B1.
4. For book-length accounts of the case, see Fletcher, supra note 1
5. Mark Lesly & Charles Shuttlesworth, Subway Gunman: A Juror's Account of the Bernhard Goetz Trial (1988)
6. and Lillian B. Rubin, Quiet Rage: Bernie Goetz in a Time of Madness (1986).
7. See Fletcher, supra note 1, at 1.
8. Two of the victims (James Ramseur and Barry Allen) were eighteen. The other two (Darrell Cabey and Troy Canty) were nineteen. Id. at 2-3.
9. Id. at 1.
10. Goetz, 497 N.E.2d at 43 ("Canty approached Goetz, possibly with Allen beside him.").
11. Id.
12. Id. at 44.
13. Id. at 43.
14. Id.
15. Id. at 44. But cf. Fletcher, supra note 1, at 171 (noting that "eight witnesses testified that they did not hear a pause").
16. Goetz, 497 N.E.2d at 44.
17. Id. The fourth victim was Darell Cabey. Cabey later filed a civil suit against Goetz and won a $43 million judgment in 1996. Civil Complaint Against "Subway Vigilante" Bernhard Goetz Filed '85' and Tried' 96', http://www.lectlawcom/files/cas91.htm (last visited Jan. 4, 2008).
18. Fletcher, supra note 1, at 5.
19. Id. at 2.
20. Id.
21. Goetz, 497 N.E.2d at 44.
22. See id. at 43. The jury acquitted Goetz on all charges (including the attempted murder charges), with the single exception of the firearms possession count. Although "the defense [had] never seriously challenged whether, as a matter of fact, Goetz intended to cause death by shooting the four youths," Fletcher, supra note 1, at 185, the jury nonetheless believed that he lacked the intent needed to convict on attempted murder, see, e.g., id. at 186-88
23. Lesly, supra note 2, at 279-82, and so never reached the question of self-defense as an affirmative defense. The jurors believed that Goetz lacked the requisite intent because they "incorporated Goetz's purpose of defending himself into their analysis of his intention [to kill]."
24. Fletcher, supra note 1, at 187. For the jury, Goetz's intent was to defend himself and in order to do that, he intended to pull the trigger on the gun. But he did not intend to cause death. Causing death was merely a foreseeable consequence of pulling the trigger.
25. Although this way of thinking about self-defense is generally at odds with contemporary thinking, see, e.g., id. at i86, it nonetheless has a long history rooted in the Catholic doctrine of double effect.
26. See, e.g., Fiona Leverick, Killing in Self-Defence 53-54 (2006) (describing "appeal[s] to the doctrine of double effect" as an "explan[ation for] the justification of killing in self-defence" but concluding that the attempted explanation is ultimately unpersuasive). The underlying philosophical question at issue here deals with how one should go about individuating the objects of intention.
27. See, e.g., Michael Moore, Placing Blame: A General Theory of the Criminal Law 469 (1997) (arguing in fiavor of a "very fine-grained theory" of individuation).
28. See, e.g., Joshua Dressler, Understanding Criminal Law §18.01[E], at 239 (4th ed. 2006) ("A defendant is justified in killing a supposed aggressor if the defendant's belief in this regard is objectively reasonable.")
29. Wayne R. LaFave, Criminal Law §5.7(c), at 493-95 (3d ed. 2000) ("[S]elf-defense generally require [s] that the defendant's belief in the necessity of using [deadly] force to prevent harm to himself be a reasonable ono ...")
30. Leverick, supra note 18, at 161 ("The majority of common law jurisdictions take the approach that only a reasonable mistake about the existence of an attack should be permitted to ground an acquittal.")
31. Rollin M. Perkins & Ronald N. Boyce, Criminal Law 1127 (3d ed. 1982) ("[D]eadly force is authorized to defend against deadly force if this reasonably seems necessary to avoid death or great bodily injury."). At the time Goetz was tried, New York law permitted (and continues to permit) an actor to use deadly physical force against another person when he reasonably believes that the "other person is using or about to use deadly physical force," N.Y. Penal Law §35.15(2)(a) (McKinney 2007), where deadly physical force means "physical force which, under the circumstances in which it is used, is readily capable of causing death or serious physical injury." Id. §10.00(11). it also permitted (and continues to permit) an actor to use deadly physical force against another person when he reasonably believes that the other person is "committing or attempting to commit a ... robbery," Id. § 35-15(2)(b), where robbery is defined as larceny in which the actor "uses or threatens the immediate use of physical force upon another person," Id. §160.00, whether or not that physical force rises to the level of deadly physical force.
32. See also 2 Paul H. Robinson, Criminal Law Defenses §131(d), at 83 ("Some states expressly authorize the use of deadly defensive force in response to certain enumerated offenses.").
33. An actor who kills because he unreasonably believed that he was about to be killed may in some jurisdictions be enrided to a partial defense usually described as "imperfect self-defense." See Dressler, supra note 19, §18-03, at 249.
34. The facts may matter as to whether the defense is characterized as an excuse or as a justification. See id. §18-04[A]-[B], at 250-51.
35. According to a recent annotation, the reasonable-belief rule is the majority rule in the United States. See John F. Wagner, Jr., Annotation, Standard for Determination of Reasonableness of Criminal Defendant's Belief, for Purposes of Self-Defense Claim, That Physical Force Is Necessary-Modern Cases, 73 A.L.R.4th 993, 996 (1989 & Supp. 2006) ("[M]ost states having penal codes have ... opted for a 'reasonable belief rule ...."). However, according to at least one writer, it was nor always so. See Richard Singer, The Resurgence of Men Rea: II-Honest But Unreasonable Mistake of Fact in Self-Defense,
36. B.C. L. Rev. 459, 470-90 (1987) (arguing that the reasonable-belief rule was not incorporated into American law until the mid-nineteenth century). Under English law, an actor who honestly but unreasonably believed that he needed to use force to protect himself from force is deemed to lack the intent to inflict "unlawful" force. Consequently, an honest belief in the need to use deadly force is sufficient to preclude conviction. See Regina v. Williams, [1984] 78 Crim. App. 276, 281 ("in a case of self-defence - - - if the jury came to the conclusion that the defendant believed ... that force was necessary to protect himself .... then the prosecution have not proved their case.")
37. Beckford v. Regina, [1987] 85 Crim. ApP. 378, 385 ("[A] genuine belief in facts which if true would justify self-defense [must] be a defence to a crime of personal violence because the belief negates the intent to act unlawfully."). For commentary on English law, see Andrew Ashworth, Principles of Criminal Law §6.6, at 235 (4th ed. 2003) ("[A] putative defence will succeed whenever D raises a reasonable doubt that he actually held the mistaken belief, no matter how outlandish that belief may have been.")
38. A.R Simester & G.R. Sullivan, Criminal Law: Theory and Doctrine § 17.1(iii), at 550 (2d ed. 2003) ("[A] person who believed force was necessary to protect another from violence would lack an intent to inflict unlawful force.")
39. William Wilson, Criminal Law: Doctrine and Theory §9.10(B), at 253 (2d ed. 2003) ("The ... requirement that the mistake made be a reasonable one was abandoned [in Williams].")
40. Andrew Simester, Mistakes in Defence, 12 Oxford J. Legal Stud. 295, 295 (1992) (arguing that the "reasoning in [Williams and Beckford] is unsound and has unfortunate implications fior The criminal law in general"). Cr. George Fletcher, Mistake in the Model Penal Code: A False False Problem, 19 Rutgers L.J. 649, 652 (1988) (noting that "[i]f every relevant fanctual issue were intrinsic to the required intent, any mistake would be a good defense").
41. Sanford H. Kadish et al., Criminal Law and Its Processes: Cases and Materials 743 (8th ed. 2007).
42. But see Franklin E. Zinning, Hardly the Trial of the Century, 87 Mich. L. Rev. 1307, 1309 (1989) (book review) ("[W]hat is There about [The Goetz case] That justifies its landmark status in public discussions of crime and criminal justice? Perhaps there is less than we might suppose.").
43. The case is reproduced in several criminal-law casebooks. See Richard J. Bonnie et al., Criminal Law 419 (2d ed. 2004)
44. Ronald N. Boyce et al., Criminal Law and Procedure: Cases and Materials 912 (10th ed. 2007)
45. Joseph G. Cook & Paul Marcus, Criminal Law 691 (4th ed.1999)
46. Joshua Dressler, Cases and Materials on Criminal Law 504 (4th ed. 2007)
47. Markus D. Dubber & Mark G. Kelman, American Criminal Law: Cases, Statutes, and Comments 542 (2005)
48. Kadish et al., supra note 23, at 739
49. John Kaplan et al., Criminal Tnw: Cases and Materials 521 (5th ed. 2004)
50. Wayne R. LaFave, Modern Criminal Law: Cases, Comments and Questions 510 (4th ed. 2006)
51. Cynthia Lee & Angela Harris, Criminal Law: Cases and Materials 727 (2005)
52. Andre A. Moenssens et al, Criminal Law: Cases and Comments 518 (7th ed. 2003)
53. Paul H. Robinson, Criminal Law: Case Studies and Controversies 559 (2005).
54. According to Fletcher, "[i]f Goetz really did pause after the fourth shot, physically approach [the final victim], and say, 'You seem to [be doing] all right; here's another,' it would be almost impossible to construe this shot as a reasonable act of self-defense." Fletcher, supra note 1, at 170.
55. But see id. at 171 (noting that the testimony of other witnesses suggested no such pause)
56. Singer, supra note 22, at 516 ("[E]ven Goetz's fifth shot could be found by a jury to have emanated from a swirl of anxiety and loss of control which continued far after the last shot.").
57. See, e.g., Dressler, supra note 19, §27.05, at 417-22 (discussing the mens rea of attempts).
58. Although the discussion hereafter proceeds on the facts of Goetz*, and not on the facts of the real Goetz case, I nonetheless suspect, though I could of course be wrong, that those who would have been disinclined to acquit the real Goetz will also be disinclined to acquit Goetz*. I have this suspicion because I doubt that the features I strip away from the real case are really what matters to most people who believe that the real Goetz did not act in self-defense. What matters to them is the fact that Goetz believed that he was about to be attacked because he was a racist, and would not have believed that he was about to be attacked had he not been a racist But I will be assuming that those facts are true of Goetz* too.
59. See, e.g., Dressler, supra note 19, §18.05, at 253 ("The crux of the issue, at least as courts see the matter, is: ... [T]o what extent should courts permit juries, as factfinders, to incorporate the defendant's own characteristics or life experiences in the 'reasonable person' standard?")
60. Cynthia Lee, Murder and the Reasonable Man 209 (2003) ("Since most jurisdictions utilize a hybrid subjectivized-objective standard, a critical question is which of the defendant's characteristics are or should be incorporated into the Reasonable Person standard?"). Paul Robinson and Michael Cah ill have noted that criminal-law theorists have not yet been able to articulate a comprehensive principle that defines what should and should not be allowed to individualize the reasonable-person standard" and that this question is "perhaps the greatest challenge to the present and coming generation of theorists ...."
61. Paul H. Robinson & Michael T. Cahill, Law Without Justice: Why Criminal Law Doesn't Give People What They Deserve 51 (2006). One possible explanation for this state of affairs may be, as Larry Alexander famously argued, that any answer to the question as formulated is bound to be "morally arbitrary."
62. Larry Alexander, Reconsidering the Relationship among Voluntary Acts, Strict Liability and Negligence in Criminal Law, 7 Soc. Phil & Pol'y, Spring 1990, at 84, 99. If so, then Peter Westen is doubtless correct when he says that the question is the wrong one to be asking.
63. See Peter Westen, Individualizing the Reasonable Person in Criminal Law, Crim. L & Phil. (forthcoming 2008) (manuscript on file with author) (arguing that the right question is: "'what would a person, who otherwise possessed every trait of the actor but fully respected the interests that the statute at hand seeks to protect, have [believed] on the occasion at issue?"')
64. see also RA Duff, Choice, Character, and Criminal Liability, 12 Law & Phil. 345, 359 (1993) ("[W]e should give the reasonable person any of this defendant's actual characteristics ... other than [those] which involve or reveal A lack of proper regard for the law And its values...." I agree with Westen thnt we Are asking the wrong question, but my proposed replacement is different.
65. See, e.g., George P. Fletcher, Rethinking Criminal Law §6.8, at 513 (1978) ("If the reasonable person were defined to be just like the defendant in every respect, he would arguably [believe and] do exactly what the defendant [believed and] did under the circumstances. Thus the standard of judgment collapses into a description of the particular defendant.")
66. Robinson & Cahill, supra note 28, at 50 ("[A] complete individualization of the objective standard ... would produce a purely subjective standard."). One might argue that a fully subjective standard does not in fact eliminate the reasonable-belief requirement altogether. The idea would be that under a fully subjective standard an actor's belief that p is a reasonable belief if be actor believes that p and at be same time believes that it is reasonable to believe that p. Conversely, an actor's belief that p is an unreasomble belief actor believes t6tp but at be same time believes thatit 6 unreasonable to believe that p. An actor in this latter epistemic state can be described as epistemically akratic. He believes that p at the same time bat he believes all things considered that he should not believe that p, just as a practically akratic actor performs an act at the same time that he believes all things considered that he should not perform that act. A debate exists as to whether this epistemic state is conceptually impossible or merely irrational.
67. Compare Jonathan E. Adler, Akratic Believing?, 110 Phil. Stud. 1, 21 (2002) (" [T] he first-personal thought corresponding to the admission of akratic belief would be not merely irrational, but incoherent.")
68. David Owens, Epistemic Akrasia 85 Monist 381, 395 (2002) ("[E]pistemic akrasia ... is impossible."), with John Heil, Doxastic Incontinence, 93 Mind 56, 65 (1984) ("Doxastic incontinence is reprehensible, not because it holds out an unattainable goal, but became it is at odds with what we take to be the aims of rational doxastic agents.")
69. Alfred R. Mele, Incontinent Believing, 36 Phil. Q. 212, 217 (1986) (arguing that "full-blown incontinent believing" is "possible").
70. An actor who finds himself in simultaneous possession of such belief might be said to be suffering from "ephemic akrasia." For more on this idea, see supra note 29.
71. See, e.g., Dressler, supra note 19, §18.04[A], at 251 ("One who is threatened with immediate death is not deterrable by the threat of criminal sanction. Therefore, his punishment is inefficacious.").
72. Conversely, a belief formed in the absence of any such violation might fairly be described as "reasonable."
73. Some evidence suggested the contrary. For example, according to an article written in New York Magazine soon after the first grand jury declined to indict the real Goetz on attempted-murder charges, Goetz's neighbor, Myra Friedman, wrote: The other troubles of 14th Street[, on which Goetz lived,] remained. People in the building who had always considered themselves to be liberals began expressing some surprising sentiments. Bernie was one of these people. At a community meeting, I heard him say, "The only way we're going to clean up this street is to get rid of the spics and niggers." I was shocked to hear a man who I knew to have close black and Hispanic friends talk this way, and I said, "I'm getting out of here." Later, somebody close to Bernie for many years suggested that he used an occasional racial epithet just to shock. Myra Friedman, My Neighbor Bernie Goetz, N.Y. Mag., Feb. 18, 1985, at 34, 35.
74. George Fletcher, who observed the proceedings against Goetz firsthand, concluded that "[w]e have to accept the implication that at the time of [Goetz's] confession, at least, racial consciousness and animosity did not weigh heavily in Goetz's mind." Fletcher, supra note 1, at 205.
75. The assumption that race can make the difference between forming the belief that p and not forming that belief is consistent with empirical studies showing that actors are more apt to perceive a threat when, all else being equal, the putative assailant is black than when he is white. See, e.g., Joshua Correll et al., The Police Officer's Dilemma: Using Ethnicity to Disambiguate Potentially Threatening Individuals, 83 J. Personality & Soc. Psychol. 1314, 1325 (2002) (noting that participants in a study "fired on an armed target more quickly when he was African American than when he was White")
76. Charles M. Judd et al., Automatic Stereotype vs. Automatic Prejudice: Sorting Out the Possibilities in the Payne (2001) Weapon Paradigm, 40 J. Experimental Soc. Psychol. 75, 80 (2004) ("Black faces seem to facilitate weapon identification compared to White faces.")
77. B. Keith Payne, Prejudice and Perception: The Role of Automatic and Controlled Processes in Misperceiving a Weapon, 81 J. Personality & Soc. Psychol. 181, 182 (2001) ("[W]hen forced to respond rapidly, racial cues may cause perceivers to make stereotype-consistent errors.")
78. B. Keith Payne et al., Best Laid Plans: Effects of Goals on Accessibility Bias and Cognitive Control in Race-based Misperceptions of Weapons, 38 J. Experimental Soc. Psychol. 384, 394 (2002).
79. The participants in one of the studies reported in Correll et al. "consist[ed] of both Whites and African Americans." Correll et al., supra, at 1328.
80. Corell and his co-authors concluded that their "studies ... suggest that Shooter Bias is present among White college students ... and among a community sample that consists of both Whites and African-Americans...." Id. The other studies cited above included only nonblack participants.
81. I make no claim that the theories examined here exhaust all the possibilities. What I mainly hope to accomplish is to place the argumentative burden of proof on those who believe that Goetz* can be punished consistent with the principle mentioned in the text.
82. The Model Penal Code requires that the actor's use of force be "immediately necessary." Model Penal Code §3.04(1) (Proposed Official Draft 1962). No jurisdiction that I know of specifies how probable an actor must reasonably believe a lethal attack to be before he is permitted to use deadly force to preempt it. In other words, no statute defining self-defense says, for example, that an actor must reasonably believe that the probability of death or serious bodily injury is 75 percent before the actor can respond with deadly force. Likewise, no jurisdiction specifies how confident an actor must be in his belief that death or serious bodily injury is imminent before he is permitted to use deadly force. For present purposes, I will assume that an actor must have whatever measure of confidence is needed in order to say that his cognitive attitude toward p qualifies as a belief, and not merely a suspicion. If an actor merely suspects that p, then he probably should not be permitted to use deadly force. See Boaz Sangero, Self-Defence in Criminal Law 287-88 (2006) ("A situation could exist in which the actor is not sure whether he is being attacked or not. In such a situation there is good reason to require that he explore and verify the situation prior to using defensive force.").
83. Mark Kelman and Jody Armour nonetheless propose that an actor should be entitled to self-defense if and only if the error costs associated with a false positive (i.e., believing one is about to be attacked when one is not about to be attacked) are less than those associated with a false negative (i.e., believing one is not about to be attacked when one is about to be attacked). See Jody D. Armour, Race Ipsa Loquitur: Of Reasonable Racists, Intelligent Baysians, and Involuntary Negrophobes, 46 Stan. L. Rev. 781, 794-95 (1994)
84. Mark Kelman, Reasonable Evidence of Reasonableness, 17 Critical Inquiry 798, 815-16 (1991).
85. For example, suppose at the moment he pulled the trigger that Goetz* believed that the probability of him being killed (unless he killed first) was 75 percent. According to the Kelman-Armour thesis, Goetz* should not, despite his belief, be acquitted on grounds of self-defense if a jury decides that the false-negative error costs associated with requiring him to wait are less than the false-positive error costs associated with permitting him to kill. Moreover, while the false-negative error costs are limited more or less to Goetz*'s death, the false-positive error costs are not limited to the death of the innocent victim. Inasmuch as Goetz* "selected [his victims] on the basis of their race," Kelman, supra, at 815, those costs also include the stigmatization of young black men and their consequent exclusion from full participation in public life.
86. See id. at 816. Thus, despite his belief that the chance of him being killed unless he killed first was 75 percent, the law should demand that Goetz* wait until he believed that the chance was even higher, though how much higher is unclear.
87. This theory may be an attractive proposal for reforming self-defense law. It may even be an accurate description of how jurors actually go about deciding cases of self-defense. But it is not an accurate statement of the law of self-defense. The law of self-defense (generally speaking) permits an actor to use deadly force when he reasonably believes that the use of such force is necessary to prevent him from being killed or seriously injured. In contrast, the Kelman-Armour proposal would permit an actor to use deadly force if and only if, given the actor's belief that the probability that he will be killed or seriously injured (unless he kills first) is φ, the false-positive error costs of killing are less than the false-negative error costs of waiting. This proposal asks the jury to assess not the reasonableness of the actor's belief, but the reasonableness of his action in light of his beliefs. See id. at 800 (arguing that "although the stated norm in self-defense cases [i.e., the law of self-defense] makes reference only to the reasonableness of the defendant's factual perceptions, we in fact also expect the jury to judge the reasonableness of his decision to use deadly force, and that two defendants facing an equal chance of grievous bodily harm or death may not and should not always be judged to be acting equally reasonably in doing so"). Moreover, existing doctrine is already designed to make sure that an actor's use of deadly force is reasonable, at least in the sense that it is proportional. An actor can only use deadly force to defend against deadly force. He cannot use deadly force against nondeadly force, even when the use of deadly force is necessary to avoid nondeadly injury.
88. See, e.g., Dressler, supra note 19, §18.02[D][1], at 246-48.
89. One can imagine cases in which an actor reasonably believes that he is facing imminent death or serious bodily injury but nonetheless unreasonably believes that the use of deadly force is necessary to avoid such death or injury. If some measure of force less than that of deadly force would suffice to avoid an imminent threat of death or serious injury, then the actor is not permitted to resort to deadly force. He is only permitted to use the lesser force needed to avoid the threat. See, e.g., id., §18.02[C], at 238.
90. For arguments in favor of eliminating the imminence requirement from the law of self-defense, see 2 Robinson, supra note 19, §131(c)(1), at 78 ("The proper inquiry is not the immediacy of the threat but the immediacy of the response necessary in defense.")
91. Richard Rosen, On Self-Defense, Imminence, and Women Who Kill Their Batterers, 71 N.C.L. Rev. 371, 380 (1993) ("Because imminence serves only to further the necessity principle, if there is a conflict between imminence and necessity, necessity must prevail.").
92. But see Kimberly Kessler Ferzan, Defending Imminence: From Battered Women to Iraq, 46 Ariz. L. Rev. 213, 217 (2004) (defending the imminence requirement on the grounds that "[i]mminence serves as the actus reus for aggression, separating those threats that we may properly defend against from mere inchoate and potential threats").
93. The Model Penal Cock's self-defense provision does not speak in terms of "reasonable" or "unreasonable" beliefs. See Paul H. Robinson, Criminal Law §4.4, at 263-64 (1997) (describing differences between common law and MPC approaches to mistakes generally. Instead, the code's self-defense provision says that an actor is permitted to use deadly force if he believes - reasonably or otherwise - that the use of such force is "necessary to protect himself against death, serious bodily injury, kidnapping or sexual intercourse compelled by force or threat..." Model Penal Code §3.04(2)(b) (Proposed Official Draft 1962). Standing alone, this provision would mean that an actor is entitled to an acquittal on grounds of selt-defense if he honestly believed that the use of deadly force was necessary to protect himself against the itemized harms, no matter how unreasonable that belief might be. But another section of the code qualifies this provision, such that if an actor is "reckless or negligent in having such belief or in acquiring or failing to acquire any knowledge or belief which is material to the justifiablity of his use of force, the justification afforded by [the self-defense provision] is unavailable in a prosecution for an offense for which recklessness or negligence, as the case may be, suffices to establish culpability."
94. Id. §3.09(2). This provision is usually understood to mean that an actor who recklessly believes that the use of deadly force is immediately necessary can, for example, raise the defense with respect to a charge of murder (for which recklessness does not suffice for liability), but not with respect to a charge of manslaughter (for which recklessness does suffice)
95. likewise, an actor who negligently believes that the use of deadly force is immediately necessary can raise the defense with respect to a charge of murder or manslaughter (for which negligence does not suffice), but not with respect to a charge of negligent homicide (for which negligence does suffice). The code's approach has the virtue ot trying to align the culpability associated with an actor's mistaken belief in the need to use deadly force with the offense for which he is ultimately held liable. A reckless mistake gets you reckless homicide;
96. a negligent mistake gets you negligent homicide. Nonetheless, one problem with this approach (among others) is its reliance on the idea of a "reckless belief." What does it mean to call a belief "reckless"? According to one view, an actor who recklessly believes that p is one who believes that p but at the same time suspects that not- p. See, e.g., Douglas N. Husak & Craig A. Callender, Wilful Ignorance, Knowledge, and the "Equal Culpability" Thesis: A Study of the Deeper Significance of the Principle of Legality, 1994 Wis. L. Rev. 29, 41-42.
97. Despite his belief that p, the actor's suspicion that not-p might provide the basis for requiring him to act to gather additional evidence, or simply to wait to acquire additional evidence, that would confirm his suspicion. According to another view, an actor who recklessly believes that p is one who believes that p while at the same time believing that he should believe that not-p. See, e.g., Larry Alexander, Lesser Evils: A Closer Look at the Paradigmatic Justification, 24 Law & Phil. 611, 624-25 (2005).
98. This approach treats an actor who recklessly believes that p as someone suffering from epistemic akrasia. See supra note 29. For present purposes, I will continue to speak in the more familiar common-law terminology of reasonable and unreasonable belief.
99. According to one writer, self-defense is always an excuse. See Claire O. Finkelstein, Self-Defense As a Rational Excuse, 57 U. Pitt. L. Rev. 621, 643-44 (1996). According to another, the entire excuse-justification debate is misguided inasmuch as the "restrictive schema of 'justification' and 'excuse' forces theorists to choose between just two alternative classifications, neither of which is satisfactory." R.A. Duff, Rethinking Justifications, 39 Tulsa L. Rev. 829, 838 (2004).
100. Duff does not "discuss cases in which the actor's beliefs are unreasonable...." Id. at 838 n.25.
101. See, e.g., Arthur Ripstein, Equality, Responsibility, and the Law 199 (1999)
102. Victor Tadros, Criminal Responsibility 291 (2005)
103. Marcia Baron, Justifications and Excuses, 2 Ohio St. J. Crim. L. 387, 387 (2005)
104. Mitchell N. Berman, Justification and Excuse, Law and Morality, 53 Duke L.J. 1, 56 (2003)
105. Russell L. Christopher, Mistake of Fact in the Objective Theory of Justification: Do Two Rights Make Two Wrongs Make Two Rights...?, 85 J. Crim. L. & Criminology 295, 331 (1995)
106. Joshua Dressler, New Thoughts About the Concept of Justification in the Criminal Law: A Critique of Fletcher's Thinking and Rethinking, 32 UCLA L. Rev. 61, 93 (1985)
107. Kent Greenawalt, The Perplexing Borders of Justification and Excuse, 84 Colum. L. Rev. 1897, 1903 (1984)
108. Kenneth W. Simons, Self-Defense: Reasonable Belief or Reasonable Self-Control?, 11 New Crim. L. Rev. 51, 65 (2008)
109. Hamish Stewart, The Role of Reasonableness in Self-Defense, 16 Can. J.L. & Jurisprudence. 317, 336 (2003).
110. See, e.g., Fletcher, supra note 29, §10.1.2, at 766
111. Larry Alexander, A Unified Excuse of Preemptive Self-Protection, 74 Notre Dame L. Rev. 1475, 1493-94 (1999)
112. John Gardner, Justifications and Reasons, in Harm and Culpability 103, 105 (A.P. Simester & A.T.H. Smith eds., 1996)
113. Heidi M. Hurd, Justification and Excuse, Wrongdoing and Culpability, 74 Notre Dame L. Rev. 1551, 15644 (1999)
114. Paul Robinson, Competing Theories of Justification: Deeds v. Reasons, in Harm and Culpability, supra, at 45, 47
115. Paul H. Robinson, Criminal Law Defenses: A Systematic Analysis, 82 Colum. L. Rev. 199, 239-40 (1982).
116. For claims contrary to this consensus, see Glanville Williams, Criminal Law: The General Part §73, at 209 (2d ed. 1961) ("If a man inflicts injury on another in the unreasonable belief that he has to do so in self-defence, the injury must be borne philosophically as an accident.... If this is so, why should the position be any different where the act of supposed self-defense results in death?")
117. Singer, supra note 22, at 461 (concluding that the "subjective test is preferable to the objective rule [i.e., the reasonable-belief rule] courts embraced in the nineteenth century").
118. See, e.g., Dressler, supra note 19, §18.03, at 249
119. LaFave, supra note 19, §5.7(i), at 500-01.
120. At least one study finds that most people, given a choice, would choose to make an unreasonably mistaken actor's liability proportionate to the culpability associated with his mistake. See Paul H. Robinson & John M. Darley, Testing Competing Theories of Justification, 76 N.C. L. Rev. 1095, 1128 (1998).
121. See, e.g., Dressler, supra note 19, §18.03, at 249-50 (noting that imperfect self-defense mitigates culpability)
122. Robinson, supra note 38, §8.5, at 460 (noting that MPC version of
123. See, e.g., 2 Robinson, supra note 19, §123(a), at 30 ("[A]ll jurisdictions with law on this point take into account the actor's culpability in causing or contributing to the justifying circumstances, and limit the availability of the justification defenses.")
124. id. §162(a), at 247 (noting that although "the problem of an actor causing his disability or condition most frequently arises in cases involving intoxication... [t]here is no reason... why such a circumstance should not be taken into account for an excuses").
125. Some forfeiture rules are based, not on the actor's culpable choice to encounter a threat, but instead on his negligent encountering of it. For example, under the Model Penal Code an actor who "was negligent in placing himself in... a situation [in which it was probable that he would be subjected to duress]" forfeits any claim of duress "whenever negligence suffices to establish culpability for the offense charged." Model Penal Code §2.09(2) (Proposed Official Draft 1962). Because I believe that negligence is a controversial basis upon which to premise a forfeiture rule, I set aside such negligence-based rules for present purposes. I believe that negligence is a controversial basis upon which to premise a forfeiture rule because I believe that negligence is (most often) an illegitimate basis upon which to premise retributive punishment, and forfeiture rules end up imposing retributive punishment for the act or omission forming the basis for the forfeiture.
126. Model Penal Code §3.04(2)(b)(i) (Proposed Official Draft 1962).
127. Id. The real Goetz would not have lost his claim of self-defense under this provision. Even if he did in fact do something to "provoke the use of force against himself," nothing in the available facts suggests that he did so with the "purpose of causing death or serious bodily injury." I assume, for example, that even if Goetz's choice to sit close to the four youths provoked (i.e., was a but-for cause of) their use of force against him, Goetz did not make that choice in order to cause death or serious bodily injury to the victims. The result might be different under broader (and therefore more controversial) formulations of the aggressor rule.
128. Forfeiture rules are for some reason seldom attached to insanity-defense provisions. See, e.g., Paul H. Robinson, Causing the Conditions of One's Own Defense: A Study in the Limits of Theory in Criminal Law Doctrine, 71 Va. L. Rev. 1, 24 & n.85 (1985) (identifying only two states whose penal codes deny an actor an insanity defense when the actor culpably chooses to cause his own insanity). Although an actor may bear no responsibility for being mentally diseased or defective, he may nonetheless bear some responsibility under some circumstances if he permits his mental disease or defect to cause the cognitive or volitional incapacity associated with traditional tests of insanity; for example, choosing not to take medicine he knows that he needs to take in order to control the effects of his disorder.
129. See, e.g., Michael D. Slodov, Note, Criminal Responsibility and the Noncompliant Psychiatric Offender: Risking Madness, 40 Case W. Res. L. Rev. 271, 274 (1990) (arguing that "in some circumstances, imposing responsibility on the noncompliant mentally ill offender is consistent with the aims of criminal law and with accepted principles of criminal responsibility").
130. Model Penal Code §2.09(2) (Proposed Official Draft 1962). The defense is forfeited completely if the actor recklessly placed himself in such a situation (and presumably if he does so purposely or knowingly as well), but only partially if the actor negligently places himself in such a situation. See id.
131. See, e.g., Model Penal Code §3.02(2) ("When the actor was reckless or negligent in bringing about the situation requiring a choice of harms or evils..., the justification afforded by this Section is unavailable in a prosecution for any offense for which recklessness or negligence, as the case may be, suffices to establish culpability.". An actor who purposely or knowingly brought about the situation requiring such a choice would presumably lose the defense altogether.
132. This rule is sometimes characterized as an evidentiary rule and sometimes as a substantive rule. Take the case of a drunken defendant who unwittingly kills someone and is charged with reckless homicide, which requires awareness of the lethal risk his conduct is creating. Characterizing the voluntary-intoxication rule as an evidentiary rule would mean that the state is required to prove that the defendant realized that he was creating a lethal risk, but that the defendant is prevented from introducing intoxication evidence designed to show that he lacked the requisite awareness. Characterizing the rule as a substantive rule would mean that the state is not required to prove the requisite awareness. Instead, it would mean that the state believes that getting drunk and unwittingly causing death is just as serious as the crime of reckless homicide (consciously imposing an unjustified lethal risk with death resulting). Compare Montana v. Egelhoff, 518 U.S. 37, 41 (1996) (plurality opinion) (characterizing the Montana voluntary-intoxication rule at issue in the case as a rule of evidence excluding evidence of the effects of voluntary intoxication), with id. at 57 (Ginsburg, J., concurring) (characterizing the rule as a substantive rule redefining the mental-state element of the offense charged).
133. See also Peter Westen, Egelhoff Again, 36 Am. Crim. L. Rev. 1203, 1215-27 (1999) (describing these two approaches). Some jurisdictions treat mental-illness evidence in a manner analogous to voluntary-intoxication evidence. In these jurisdictions mental-illness evidence can be introduced to show that the defendant was insane, but it cannot be introduced to show that he lacked a mental state associated with the crime charged.
134. See Dressler, supra note 19, §26.02[B][4], at 397-98. Although this mental-illness rule may be defended on a variety of evidentiary grounds,
135. see, e.g., Clark v. Arizona, 126 S. Ct. 2709, 2734-36 (2006), it would be harder to defend on substantive grounds. Treating a voluntarily intoxicated actor as if he possessed a mental state he did not in fact possess is one thing: A voluntarily intoxicated actor is at least responsible for becoming intoxicated. Treating a mentally ill actor as if he possessed a mental state he did not in fact possess is another: A mentally ill actor is ordinarily responsible neither for becoming mentally ill nor for the behavioral manifestations of his illness.
136. See, e.g., Model Penal Code §2.08 (Proposed Official Draft 1962). For three slightly different interpretations of §2.08,
137. see Westen, supra note 51, at 1220 n.72. A voluntarily intoxicated actor would still have a failure-of-proof defense to a charge of purposeful or knowing homicide (denominated murder) under the MPC. Less clear is whether the actor would continue to have such a defense to a charge of reckless homicide under circumstances manifesting extreme indifference to the value of human life (also denominated murder).
138. Opponents of the voluntary-intoxication rule have proposed a separate crime of "being drunk and dangerous" for which "conviction ... should usually result in purely remedial treatment ... [and] could even result in punishment if the accused, knowing from previous experience that he is dangerous when in liquor, continues to take it." Williams, supra note 42, §183, at 573-74.
139. See Robinson, supra note 48, at 28-29.
140. One might argue that an actor subject to the reasonable-belief rule would not otherwise have a valid defense, whereas an actor subject to the voluntary-intoxication rule would. An actor who kills because he unreasonably believes that he is about to be killed does not have a valid self-defense claim, so the argument goes, because a valid self-defense claim requires his belief to be reasonable. But this argument would seem to beg the question. It simply presupposes that the reasonable-belief rule is somehow intrinsic to the defense itself when the rule can also be portrayed as a forfeiture rule extrinsic to it.
141. I assume that Goetz* did not believe that p just because he believed that his putative assailants were black: That would be paranoid. Cf. American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders 690 (4th ed., textual rev. 2000) ("Individuals with [paranoid personality] disorder assume that other people will exploit, harm, or deceive them, even if no evidence exists to support this expectation....").
142. In fact all of his relevant background beliefs are generalizations, i.e., people who make gestures like the gestures the victim made are more prone to violence; people who make requests or demands for money are more prone to violence; and so forth.
143. See, e.g., Kwane Anthony Appiah, Racisms, in Anatomy of Racism 3, 5 (David Theo Goldberg ed., 1990) ("[E]xtrinsic racists make moral distinctions between members of different races because they believe that racial essence entails certain morally relevant qualities.").
144. See, e.g., Armour, supra note 36, at 782 (racism consists in the actor's belief that "blacks are more prone than whites to be criminals")
145. Kelman, supra note 36, at 812 (racism consists in the actor's beliefs "about the criminal predilections of black teenagers").
146. See, e.g., J.L.A. Garcia, The Heart of Racism, 27 J. Soc. Phil. 5, 6 (1996) ("Racism ... is something that essentially involves not our belief's and their rationality or irrationality, but our wants, intentions, likes and dislikes....") [hereinafter Garcia, Heart of Racism].
147. Garcia has defended this account against competitors in subsequent work. See, e.g., J.L.A. Garcia, Current Conceptions of Racism: A Critical Examination of Some Recent Social Philosophy, 28 J. Soc. Phil. 5 (1997)
148. J.L.A. Garcia, Philosophical Analysis and the Moral Concept of Racism, 25 Phil. & Soc. Criticism 1 (1999)
149. J.L.A. Garcia, Racism and Racial Discourse, 32 Phil. F. 125 (2001).
150. For criticism of Garcia's conative conception of racism, see, e.g., Charles W. Mills, "Heart" Attack: A Critique of Jorge Garcia's Volitional Conception of Racism, 7 J. Ethics 29, 44 (2003) ("An account of racism which just focuses on feelings without an examination of their accompanying belief's is not going to work because we need to know what beliefs ground the feelings in order to adjudicate whether they are racist or not")
151. Tommie Shelby, Is Racism in the "Heart"?, 33 J. Soc. Phil. 411, 414 (2002) (arguing that racist "beliefs are essential to and even sufficient for racism").
152. For another take on be distinction between cognitive and conative racism, see Lawrence Blum, "Im Not a Racist, But ...": The Moral Quandary of Race 8 (2002) (distinguishing between "inferiorization" (cognitive) and "antipathy" (conative) racism).
153. See, e.g., Garcia, Heart of Rarism, supra note 60, At 6 ("In its central and most vicious form, [racism] is a hatred, ill-will, directed against a person or persons on account of their assigned race.").
154. See, e.g., id. ("In a derivative form, one is a racist when one either does not care at all or does not care enough (i.e, as in much as morality requires) or does not care in the right ways about people assigned to a certain racial group, where this disregard is based on racial classification.").
155. A number of criminal-law scholars have argued that indifference, whether race-based or otherwise, does and should play an important role in criminal-law theory and doctrine. For example, they have argued that an actor who creates a risk of causing a prohibited harm, but who does so unwittingly, can still fairly be subject to retributive punishment if his lack of awareness was due to indifference to the well-being of others. See, e.g., R.A. Duff, Intention, Agency, and Criminal Liability 157 (1990) (Culpable negligence is "essentially a matter ... of a kind of 'practical indifference.'")
156. Mayo Moran, Rethinking the Reasonable Person: An Egalitarian Reconstruction of the Objective Standard 258 (2003) ("[T] he indifference account places its focus on the attitude displayed by any particular action ....")
157. Samuel H. Pillsbury, Judging Evil: Rethinking the Law of Murder and Manslaughter 171 (1998) ("Where the accused did not perceive the risks involved at the time of his conduct, culpability rests on a judgment about why the person failed to perceive")
158. Jeremy Horder, Gross Negligence and Criminal Culpability, 47 U. Toronto L.J. 495, 501 (1997) ("The subjective element in indifference lies ... in an uncaring attitude toward the victim's relevant protected interests.")
159. Samuel Pillsbury, Crimes of Indifference, 49 Rutgers L. Rev 105, 151 (1996) ("The key to culpability for failure to perceive is why the person failed to perceive.")
160. Kenneth W. Simons, Does Punishment for "Culpable Indifference" Simply Punish for "Bad Character"?: Examining the Requisite Connection Between Mens Rea and Actus Reus, 6 Buff Crim. L. Rev. 219, 264 (2002) (One "possible culpable indifference standard ... asks what the actor would have done if he had had a different belief about the relevant risks.")
161. Kenneth W. Simons, Rethinking Mental States, 72. B. U. L. Rev. 463, 487 (1992) ("[R]eckless indifference ... [means] caring much less about the result than the actor should.")
162. Kenneth W. Simons, Culpability and Retributive Theory: The Problem of Criminal Negligence, 5 J. Contemp. Legal Issues 365, 388 (T994) ("Culpable indifference ... is n desire-state reflecting the actor's grossly insufficient concern for the interests of others.")
163. Victor Tadros, Recklessness and the Duty to Take Care, in Criminal Law Theory 227, 229 (Stephen Shute & A.P. Simester eds., 2001) (arguing thnt criminal liability for negligence is not warranted unless the "defendant's action is a manifestation of one of a narrow range of vices: Primarily, vices that show that the defendant has insufficient regard for the interests of others").
164. For criticism of this line of thought, see, e.g., Larry Alexander, Insufficient Concern: A Unified Conception of Criminal Culpability, 88 Cal. L. Rev. 931, 938 (2000)
165. Stephen P. Garvey, What's Wrong With Involuntary Manslaughter?, 85 Tex. L. Rev. 333, 357-63 (2006).
166. Describing an actor who is indifferent to the well-being of blacks as possessing the desire that q is of course not quite right. It would be more precise to say that he lacks sufficient desire to treat blacks with the equal concern and respect to which everyone is entitled.
167. See, e.g., Blum, supra note 61, at 10-11 ("Inferiorizing and antipathy racism are distinct. Some inferiorizing racists do not hate the target of their belief... Conversely, not every race hater regards the target of her hatred as inferior.").
168. See, e.g., Robert Audi, Self-Deception, Rationalization and the Ethics of Belief: An Essay in Moral Psychology, in Robert Audi, Moral Knowledge and Ethical Character 131, 132 (1997) (offering an analysis of self-deception according to which among other things an actor is self-deceived if, having formed a true belief, desire pushes that belief into unconsciousness, such that the actor sincerely avows that which is false)
169. Alfred R. Mele, Self-Deception Unmasked 50-51 (2001) (offering an analysis of self-deception according to which an actor is self-deceived it among other things his desires cause him to form a false belief,)
170. Béla Szabados, Wishful Thinking and Self-Deception, 33 Analysis 201, 204 (1973) (claiming that the wishful thinker and the self-deceiver share in common the fact that "[b]oth hold the belief they do hold largely because they want to believe" as they do).
171. For a recent defense of the criminal law's dependence on such psychology against some of the challenges from various forms of eliminativism, see Katrina L. Sifferd, In Defense of the Use of Commonsense Psychology in the Criminal Law, 25 Law & Phil. 57l (2006).
172. An actor can of course choose to express his racial hatred or animus in acts that are not already crimes, including speech acts. Expressions of racial hatred - whether through speech acts or other forms of action - are fair targets of criminalization insofar as an actor has control over whether or not to engage in them. Indeed, insofar as an actor has control over the formation of an intent to humiliate or degrade another person, the formation of such an intent might itself be a fair target of criminalization, all else being equal Nonetheless, a range of countervailing considerations, including those values associated with the First Amendment, counsel against the criminalization of such speech acts or acts of intent formation. Compare R.A.V. v. City of St. Paul, 505 U.S. 377, 392 (1992) (holding that an ordinance criminalizing "fighting words that contain ... messages of 'bias-motivated' hatred" violates the First-Amendment rule against content-based discrimination),
173. with Wisconsin v. Mitchell, 508 U.S. 476, 490 (1993) (holding that a Penalty enhancement for a defendant who selected his victim because of the victim's race does not violate the First Amendment).
174. See, e.g., Kent Greenawalt, Reflections on Justifications fnr Defining Crimes by the Category of Victim, 1992 Ann. Surv. Am. L. 617, 620-25
175. Jeffrie G. Murphy, Bias Crimes: What Do Haters Deserve?, 11 Crim. Just. Ethics, Summer/Fall 1992, at 20, 21
176. Paul H. Robinson, Hate Crime: Crime of Motive, Character, or Group Terror?, 1992/1993 Ann. Surv. Am. L. 605, 606-09.
177. But see Heidi M. Hurd & Michaell S. Moore, Punishing Hatred and Prejudice, 56 Stan. L. Rev. 1081, 1123 (2004) (arguing that "hate/bias crimes concern themselves with new and novel sorts of mens rea" that cannot be understood as a form of specific intent).
178. See, e.g., Armour, supra note 36, at 787 ("The Reasonable Racist asserts that, even if his belief that blacks are 'prone to violence' stems from pure prejudice, he should be excused for considering the victim's race before using force because most similarly situated Americans would have done so as well.").
179. See, e.g., Lee, supra note 28, at 235 ("[N]ormative reasonableness is a conception of reasonableness that focuses on the beliefs and actions society ought to recognize as reasonable. A positivist (or empirical) conception of reasonableness, in contrast, focuses on what most individuals would actually feel, think, or do if they were in the defendant's situation.").
180. According to a poll taken around the time of the real Goetz case, "[w]hen black New Yorkers were asked whether they would feel unsafe if they saw several loud, teenage white boys on their subway car, 39 percent said yes. Would they feel similarly unsafe if the youths were black? Yes, 51 percent said. The responses by whites was 55 percent and 71 percent, respectively." Sam Roberts, Exploring Laws and the Legacy of the Goetz Case, N.Y. Times, Jan. 23, 1989, at B1.
181. Compare Armour, supra note 36, at 792 ("Even if we accept the... claim that his greater fear of blacks results wholly from his unbiased analysis of crime statistics, biases in the criminal justice system undermine the reliability of the statistics themselves."), with Randall Kennedy, Suspect Policy, New Republic, Sept. 13 & 20, 1999, at 30, 32 ("Statistics abundantly confirm that African Americans - and particularly young black men - commit a dramatically disproportionate share of street crime in the United States. This is a sociological fact, not a figment of the media's (or the police's) racist imagination.").
182. See, e.g., Lawrence Blum, Stereotypes and Stereotyping: A Moral Analysis, 33 Phil. Papers 251, 260 (2004) ("[S]tereotypes are, or involve, not merely generalizations, but false or misleading generalizations, i.e., overgeneralizations.").
183. See, e.g., Frederick Schauer, Profiles, Probabilities, and Stereotypes 179 (2003) ("[P]eople are often inclined to overestimate the proportion of a particularly salient component within a larger population.")
184. id. at 187 ("Because... attributes [like race]... are 'visually accessible, culturally meaningful, and interactionally relevant,' such factors tend to occupy more of the decisionmaking space than their empirical role would support.")
185. Armour, supra note 36, at 791 ("[T]he typical person tends to perceive race as the overriding factor when the supposed assailant is black.").
186. Moreover, even if the proposition that q is true, some (perhaps many) actors in fact believe that q, not because they are aware of the relevant statistical studies, but because they believe that most people believe that q is true.
187. Compare Schauer, supra note 75, at 189 ("[U]nder circumstances of existing stigmatization by race or ethnicity for members of certain races or ethnic groups it again might well be worth paying a social price just in order to avoid any further racial or ethnic stigmatization."),
188. Bernard E. Harcourt, Rethinking Racial Profiling: A Critique of the Economics, Civil Liberties, and Constitutional Literature, and of Criminal Profiling More Generally, 71 U. Chi. L. Rev. 1275, 1375-76 (2004) ("[R]acial profiling is an excellent example of how criminal profiling accentuates embedded prejudices in the criminal law."),
189. and Kennedy, supra note 73, at 33 ("[D]efenders of racial profiling frequently neglect the costs of the practice. They unduly minimize (or ignore altogether) the large extent to which racial profiling constantly adds to the sense of resentment felt by blacks of every social stratum toward the law enforcement establishment."),
190. with Michael Levin, Responses to Race Differences in Crime, 23 J. Soc. Phil. 5, 12 (1992) ("[I]f 'racism' means unjustified race-consciousness, race-based differentiations need not be racist. In particular, race-based screening is not 'racist' if justified by differential crime rates.").
191. Compare Schauer, supra note 75, at 197 ("[E]ven when race is a substantial factor, and thus even when its exclusion would significantly decrease law-enforcement efficiency, the consequences of excluding race from the profile is an increase in crime only if we are holding cost and efficiency constant."),
192. Samuel R. Gross & Debra Livingston, Essay, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1437-38 (2002) ("[W]e should be deeply suspicious of racial profiling, however mild the government's actions and however justified they may appear."),
193. and Kennedy, supra note 73, at 34 ("Our commitment to a just social order should prompt us to end racial profiling even if the generalizations on which the technique is based are buttressed by empirical evidence."),
194. With Mathias Risse & Richard Zeckhauser, Racial Profiling, 32 Phil. & Pub. Aff. 131, 144 (2004) ("We submit... that in a range of plausible cases, utilitarian considerations support racial profiling."),
195. and Peter H. Schuck, A Case for Profiling, American Lawyer, Jan. 2002, at 59, 61 ("A wise policy will insist that the justice of profiling depends on a number of variables.").
196. For a reply to Risse and Zuckhauser, see Annabelle Lever, Why Racial Profiling Is Hard to Justify: A Response to Risse and Zeckhauser, 33 Phil. & Pub. Aff. 94 (2005).
197. For thoughts on whether or not the law permits racial profiling in the context of highway drug interdiction, see, e.g., Samuel R. Gross & Katherine Y. Barnes, Road Work: Racial Profiling and Drug Interdiction on the Highway, 101 Mich. L. Rev. 651, 744 (2002) (summarizing conclusions based on analysis under the Fourth Amendment and the Equal Protection Clause).
198. This assumption is rejected in part II.
199. See, e.g., Randall Kennedy, Race, Crime, and the Law 165 (1997) ("Racially discriminatory self-protective action by private persons reinforces existing mistrusts and resentments and circulates them throughout the various spheres of society, public as well as private.")
200. Armour, supra note 36, at 795 ("[H]astier use of force against blacks forces blacks who do not want to be mistaken for assailants to avoid ostensibly public places... and core community activities....")
201. Kelman, supra note 36, at 816 ("[Y]oung black men are stigmatized, excluded from participation in generally available activities... subjected to the demeaning supposition that others know a lot about them when who they truly are as individuals is wholly misassessed.").
202. See Armour, supra note 36, at 795 ("[R]ace-based evidence of reasonableness impairs the capacity of jurors to rationally and fairly strike the balance between the costs of waiting (increased risk for the person who perceives imminent attack) and the costs of not waiting (injury or death to the immediate victim, exclusion of blacks from core community activities, and, ultimately, reduction of individuals to predictable objects).").
203. For ideas about how the law might counteract the effects of prejudice on jury decision making, see, e.g., Jody Armour, Stereotypes and Prejudice: Helping Legal Decisionmakers Break the Prejudice Habit, 83 Cal. L. Rev. 733, 768 (1995) (Group "references that challenge... factfinders to reexamine and resist their discriminatory responses enhance the rationality of the fact-finding process.")
204. Lee, supra note 28, at 252-53 (proposing that judges give "race-switching" instructions in appropriate cases).
205. When we say that an actor acted with "discriminatory intent," one thing we might mean is that the belief on which the actor "acts," though itself unobjectionable, is nonetheless based in part on an objectionable stereotype. The stereotype is a but-for cause of the unobjectionable belief. See David A. Strauss, Discriminatory Intent and the Taming of Brown, 56 U. Chi. L. Rev. 935, 956-59 (1989) (proposing this definition of "discriminatory intent")
206. see also Michael Selmi, Proving Intentional Discrimination: The Reality of Supreme Court Rhetoric, 86 Geo. L.J. 279, 289 (1997) ("What the [Supreme] Court means by [discriminatory] intent is that an individual or group was treated differently because of race.... [T]he key question is whether race made a difference in the decisionmaking process, a question that targets causation, rather than subjective mental states.")
207. Amy L. Wax, Discrimination as Accident, 74 Ind. L.J. 1129, 1138-39 (1999) (distinguishing between two different meanings of "intentional" as that term might be used in antidiscrimination law, including a "causal view"). The actor may or may not be aware that he possesses the stereotype or that his unobjectionable belief is based on that stereotype.
208. See Strauss, supra, at 960 (noting that the causal account of discriminatory intent "reaches both conscious and unconscious discrimination"). On this view Goetz* clearly acted with "discriminatory intent." Having said that, it is one thing to impose civil liability for acting with such intent. It is another to deny an otherwise-available defense to criminal liability.
209. If one nonetheless insists that Goetz* did "act on" the belief that q at the moment he pulled the trigger, then it would seem to follow that he acted on all the other background beliefs causing him to form the belief that p. But it seems quite implausible to say that whenever we act on a belief we also act on all the background beliefs causing its formation.
210. See, e.g., Moore, supra note 18, at 571 ("[W]e are responsible for our character because we are, in part, constituted by our characters.").
211. See, e.g., George Sher, In Praise of Blame 69 (2006) (arguing that it is permissible to blame a person for his character, even if he is not responsible for it, but not to punish him for it)
212. Robert Merrihew Adams, Involuntary Sins, 94 Phil. Rev. 3, 21 (1985) (arguing that it is permissible to hold responsible and to blame a person for his character, but not to punish him for it)
213. Angela M. Smith, Responsibility for Attitudes: Activity and Passivity in Mental Life, 115 Ethics 236, 270-71 (2005) (arguing that we are responsible for our beliefs but also noting that "[o]ne question... is whether we are open to the very same kinds of appraisals for our [beliefs] as we are for our voluntary actions") (emphasis added).
214. But cf. Tadros, supra note 40, at 263 (stating that a "defendant who forms a false belief about the risks in a particular case" based on "prejudiced background beliefs" is an "exception" to the "general principle" that defendants who unwittingly impose risks do "not show the appropriate kind and degree of fault required for the proper imposition of criminal responsibility")
215. Andrew E. Taslitz, Condemning the Racist Personality: Why the Critics of Hate Crime Legislation Are Wrong, 40 B.C. L. Rev. 739, 742 (1999) (arguing that a "vision of virtuous citizen character in a republic... requires us to condemn [and punish] the racist personality").
216. See, e.g., Robinson v. California, 370 U.S. 660, 666-67 (1962) (holding that a "state law which imprisons a person" for the "'status' of narcotics addiction" violates the Eight Amendment because it "inflicts a cruel and unusual punishment").
217. See, e.g., Dan M. Kahan & Martha C. Nussbaum, Two Conceptions of Emotion in Criminal Law, 96 Colum. L. Rev. 269, 366-72 (1996) (making this suggestion).
218. See, e.g., Armour, supra note 36, at 799 (describing such a person as an "[i]nvoluntary [n]egrophobe").
219. Armour argues that such an actor should not be permitted to claim self-defense because "[l]egal recognition of the Involuntary Negophobe's claims would subvert the general welfare by destroying the legitimacy of the courts." Id. at 802.
220. See, e.g., Moore, supra note 18, at 585 ("That punishment would be deserved because of bad character alone is something the character theorist seems committed to, however much other values prevent punishment of this class of deserving persons.").
221. One might of course take the view that no one is ever responsible for his character, in which case one would end up being a skeptic about the possibility of moral responsibility altogether. See, e.g., Robert Kane, A Contemporary Introduction to Free Will 121 (2005) (describing the thesis that free will requires ultimate responsibility which in turn requires that "we must be responsible for forming the wills or characters that now determine our acts").
222. According to another choice-based theory (not discussed in the text), Goetz* should lose his claim of self-defense, not because he chose to believe that p, nor because he chose to be a racist, but because he failed to stop his racist beliefs from causing him to form the belief that p: He failed to exercise doxastic-self control when he could and should have exercised such self-control. In other words, he should have stopped his stereotypical beliefs from being activated in the first place, or if he failed at that, he should have stopped his activated stereotypical beliefs from causing him to form the belief that p. If such self-control is possible, its exercise is unlikely to be subject to one's conscious will. See, e.g., John A. Bargh, The Cognitive Monster: The Case Against the Controllability of Automatic Stereotype Effects, in Dual-Process Theories in Social Psychology 361, 378 (Shelly Chaiken & Yaacov Trope eds., 1999) ("[T]he evidence to date concerning people's realistic chances of [consciously] controlling the influence of their automatically activated stereotypes weighs in heavily on the negative side.")
223. Timothy D. Wilson et al., Mental Contamination and the Debiasing Problem, in Heuristics and Biases: The Psychology of Intuitive Judgment 185, 200 (Thomas Gilovich et al. eds., 2002) (expressing "pessimis[m] about people's natural ability to willfully control and correct their [contaminated] judgments" though "by no means suggesting that reducing mental contamination is a lost cause").
224. But see Nilanjana Dasgupta & Luis M. Rivera, From Automatic Antigay Prejudice to Behavior: The Moderating Role of Conscious Beliefs about Gender and Behavioral Control, 91 J. Personality & Soc. Psych. 268, 277 (2006) ("[T]he present data illustrate that relatively spontaneous interpersonal actions can be modified by motivation and control[.F]uture research might investigate whether... [these results] generalize to other... actions and decisions that are more constrained by cognitive load or time pressure.")
225. Patricia G. Devine & Margo J. Monteith, Automaticity and Control in Stereotyping, in Dual-Process Theories in Social Psychology, supra, at 339, 355 (discussing "findings [that] provide reason for optimism that control over stereotyping is possible").
226. Instead, the self-control needed to counteract the automatic influence
227. John F. Dovidio et al., Reducing Contemporary Prejudice: Combating Explicit and Implicit Bias at the Individual and Intergroup Level, in Reducing Prejudice and Discrimination, supra, at 137, 145 ("[S]elf-regulation, extended over time, may produce changes even in previously automatic, implicit negative responses.")
228. Jack Glaser & John F. Kihlstrom, Compensatory Automaticity: Unconscious Volition Is Not an Oxymoron, in The New Unconscious 171, 171 (Ran R. Hassin et al. eds., 2005) ("[U]nconscious vigilance for bias can lead to corrective processes that also operate without awareness or intent.")
229. Margo J. Monteith et al., Putting the Brakes on Prejudice: On the Development and Operation of Cues for Control, 83 J. Personality & Soc. Psychol. 1029, 1045 (2002) ("[P]eople can learn to put the brakes on their prejudices and control the influence of processes that otherwise could result in racially biased behavior")
230. Kerry Kawakami et al., Just Say No (to Stereotyping): Effects of Training in the Negation of Stereotypic Associations on Stereotype Activation, 78 J. Personality & Soc. Psychol. 871, 884 (2000) ("[P]articipants who received extensive training in negating stereotypes were able to reduce... stereotype activation.")
231. Gordon B. Moskowitz et al., Preconsciously Controlling Stereotyping: Implicitly Activated Egalitarian Goals Prevent the Activation of Stereotyps, 18 Soc. Cognition 151, 173 (2000) ("[C]hronic [egalitarian] goals disrupt stereotype activation.").
232. This alternative theory is perhaps best understood as a variation on the character-choice theory. See infra pp. 162-70.
233. The character-choice theory says that Goetz* loses his defense if and because he chose to become or remain a racist. The alternative theory says that he loses his defense if and because he chose not to develop, or at least chose not to try to develop, the right cognitive habits. See, e.g., Simon Wigley, Automaticity, Consciousness and Moral Responsibility, 20 Phil. Psych. 209, 218 (2007) ("[A]n automatic agent is praiseworthy or blameworthy not because of the immediate actions that led to a good or bad outcome, but rather because of what they did, or omitted to do, in the past.").
234. Accordingly, it might be called the habit-choice theory. Could a liberal state make it a crime for a citizen to fail to try to develop such a habit? For example, could a liberal state make it a crime for a citizen to fail to attend a diversity training program the goal of which is to instill the requisite habit of doxastic self-control? If not, then neither should it be permitted to base the forfeiture of an otherwise valid claim of self-defense upon such an omission. In any event, it bears noting that the prejudice habit is apparently easier to acquire than it is to break. See Aiden P. Gregg et al., Easier Done Than Undone: Asymmetry in the Malleability of Implicit Preferences, 90 J. Personality & Soc. Psychol. 1, 17 (2006) ("[P]eople can speedily develop, at an implicit level, unfavorable and undeserved evaluations of social groups that they can only laboriously unburden themselves of them later.").
235. See supra text accompanying note 27.
236. See, e.g., Nomy Arpaly, Merit, Meaning, and Human Bondage: An Essay on Free Will 96 (2006), ("[R]eflection, like fishing or fact finding, is a process we can decide to initiate but whose results we cannot choose."). it might be more accurate to say that we can choose to think, but we cannot choose not to think, though we can choose to do things to try to distract ourselves from thinking.
237. See, e.g., Robert Kane, The Significance of Free Will 24 (1996) ("Choices and decisions are acts of mind (or will), and hence events that happen at a time, possibly terminating deliberations and giving rise to intentions.")
238. Alfred R. Mele, Motivation and Agency 210 (2003) ("[P]ractical deciding [i]s a momentary mental action of intention formation.").
239. see, e.g., David Owen, Reason Without Freedom: The Problem of Epistemic Normativity 85 (2000) ("[B]elief is not subject to the will.")
240. William P. Alston, The Deontological Conception of Epistemic justification, 2 Phil. Perspectives 257, 263 (1988) ("[W]e are not so comtituted as to be able to take up propositional attitudes at will.")
241. Neil Levy, Doxastic Responsibility, 155 Synthese 127, 148 (2007) (concluding among other things that "arguments purporting to establish that we have direct control over our beliefi are not persuasive")
242. Dion Scott-Kakure, On Belief and Captivity of the Will, 54 Phil. & Phenomenological Res. 77, 77 (1994) (arguing that it is conceptually, and not merely contingently, true that "with respect to our beliefs our wills are captive")
243. Bernard Williams, Deciding to Believe, in Bernard Williams, Problems of the Self 136, 148 (1973) ("[I]t is not [merely] a contingent fact that I cannot bring it about, just like that, that I believe something.").
244. See, e.g., L. Jonathan Cohen, An Essay on Belief and Acceptance 22 (1992) ("Acceptance, in contrast with belief, occurs at will ....")
245. Stephen Shute, Knowledge and Belief in Criminal Law, in Criminal Law Theory, supra note 63, at 171, 192 ("Acceptances ... engage the will in a different way [than do beliefs]. Beliefs are 'passive.' They cannot be acquired directly through an act of will.... In contrast, acceptances are 'active';
246. they do respond to will."). But cf. Raimo Tuomela, Belief 'Versus Acceptance, 2 Phil. Explorations 122, 13 6 (2000) (concluding that "acceptance need not be intentional action, [and thus] the differences between belief and acceptance do not boil down to the simple view that acceptance, contrary to belief is based on the agent's direct exercise of his will").
247. Some writers argue that we have the same sort of control over our beliefs as we do over our actions, and as such, that we bear the same responsibility for our belief as we do for our actions. See, e.g., Carl Ginet, Deciding to Believe, in Knowledge, Iruth, and Duty: Essays on Epistemic Justification, Responsibility, and Virtue 63, 63 (Matthias Steup ed., 2001) (defending the "naïve intuition that coming to believe something just by deciding to do so is possible)"
248. Keith Frankish, Deciding to Believe Again, 116 Mind 523, 523 (2007) (defending the "view that we can form beliefs directly)"
249. Christoph Jäger, Epistemic Deontologgy, Doxastic Voluntarism, and the Principle of Alternative Possibilities, in Knowledge and Belief 217, 226 (Winfried Löffler & Paul Weingartner eds., 2004) (concluding that "there is a crucial sense in which we hold [beliefs] freely" and that this suffices for holding us responsible for our beliefs)
250. Sharon Ryan, Doxastic Comparibilism and the Ethics of Belief, 114 Phil. Stud. 47, 70 (2003) ("If you have compatibilist intuitions, you should deny [the] premise [that doxastic attitudes are never under our voluntary control].")
251. Matthias Steup, Doxastic Freedom, 161 Synthese 375, 375 (2008) ("Comparibilism entails that our actions and our doxastic attitudes [including our beliefs] are mostly free.").
252. But see Nikolaj Nottelmann, The Analogy Argument for Doxastic Voluntarism, 131 Phil. Stuld. 559, 559 (2006) (rejecting arguments that "belief formations may qualify as voluntary in perfect analogy to certain types of actions or even to actions in general"). Other writers argue that we do not have the same control over our belief, as we do over our actions, but that we bear some responsibility for our belie's nonetheless.
253. See, e.g., Adams, supra note 85, at 17 ("[B]lameworthiness of states of mind[, including beliefs,] is not dependent upon voluntariness.")
254. Robert Audi, Doxastic Voluntarism and the Ethics of Belief in Knowledge, Truth, and Duty, supra, at 93, 105 (The conclusion that "neither believing nor forming beliefs is a case of action" does not "prevent our sustaining a deontic version of an ethics of belief ....")
255. Richard Feldman, Noluntary Belief and Epistemic Evaluation, in Knowledge, Truth, and Duty, supra, at 77, 90 (concluding that "deontological judgments about belief ... do not imply that belief is voluntary')
256. Pamela Hieronymi, Responsibility for Believing, 161 Synthese 357, 358 (2008) ("[O]n at least one plausible account of what it is for a thing to be voluntary and what it is to be responsible for something, beliefs are not voluntary and yet, for failing to be voluntary, they are a central examples of the sort of thing for which we are most fundamentally responsible.")
257. Nishi Shah, Clearing Space for Doxastic Voluntarism, 85 Monist 436, 436 (2002) ("While I agree ... that agents don't have the capacity to decide what to believe, I disagree that the application of deontological concepts requires this kind of control.")
258. Smith supra note 85, at 271 ("[W]hat makes us responsible for our attitudes[, including our beliefs], is not that we have voluntarily chosen them ... but that they are the kinds of states that reflect and are in principle sensitive to our rational judgments.").
259. See supra part 1.B.
260. See Model Penal Code §2.01(4) (Proposed Official Draft 1962) ("Possession is an act .... if the possessor knowingly procured or received the thing possessed or was aware of his control thereof for a sufficient period to have been able to terminate his possession.").
261. In addition to the problems grouped under these headings is the problem of disproportionality associated with forfeiture rules in general.
262. One could say that many crimes happen just because the people who commit them find themselves in unlucky situations amenable to their commission. For example, an actor who finds himself alone with an unattended cash register and who as a result decides then and there to commit larceny was, one could say, unlucky enough to find himself alone with the cash register. But we hardly feel any sympathy for the unlucky larcenist. If so, then why should we feel any sympathy for the unlucky Goetz* who likewise finds himself in an unlucky situation? One salient difference between the unlucky larcenist and the unlucky Goetz* is that the former, but not the latter, chooses to do that which he presumably believes he is not permitted to do. The unlucky larcenist is presumably aware of the fact that he is committing a crime. In contrast, the unlucky Goetz* presumably believes under the circumstances as he believes them to be that he is permitted to kill.
263. See, e.g., Moore, supra note 18, at 235 (distinguishing between result luck, luck in execution, planning luck, and constitutive luck).
264. See, e.g., Sangero, supra note 36, at 337-39 (discussing a possibility along these lines).
265. See, e.g., Dan M. Kahan, Is Chevron Relevant to Federal Criminal Law?, 110 Harv. L. Rev. 469, 475 (1996) ("[R]esort[] to general statutory language ... necessarily transfers lawmaking responsibility to courts (or prosecutors).").
266. See Project Implicit, https://implicit.harvard.edu/implicit (last visited Jan. 4, 2008).
267. For the initial research "apprais[ing] the IAT method's usefulness for measuring evaluative associations that underlie implicit attitudes," see Anthony G. Greenwald et al., Measuring Individual Differences in Implicit Cognition: The Implicit Association Test, 74 J. Personality & Soc. Psychol. 1464, 1464 (1998).
268. For n recent update and "assessment on [the] current status" of the IAT, see Brian A. Nosek et al., The Implicit Association Test at Age 7: A Methodological and Conceptual Review, in Social Psychology and the Unconscious: The Automaticity of Higher Mental Processes 265, 266 (John A. Bargh ed., 2007).
269. But see Hal R. Arkes & Philip E. Tetlock, Attributions of Implicit Prejudice, or "Would Jesse Jackson 'Fail' the Implicit Association Test?", 15 Psychol. Inquiry 257, 257 (2004) (offering "three objections to the inferential leap from the comparative [reaction time] of different associations to the attribution of implicit prejudice").
270. See, e.g., Jerry Kang, Trojan Horses of Race, 118 Harv. L. Rev. 1489, 1556 (2005) ("[V]iolent crime stories [on the local news] can ... exacerbate implicit bias....").
271. See, e.g., Larry Alexander, Criminal Liability for Omissions: An Inventory of Issues, in Criminal Law Theory, supra note 63, at 121, 124 (noting that " [w]hat authorities there an on [the] point generally agree that liability for failing [to discharge a duty to act] does not attach to those who are unaware of the facts that give rise to the duty").
272. See id. (noting that an actor can be held liable for an omission even though he is unaware of the obligation to act but suggesting that this result might violate the principle of legality).
273. For proposed replacements to the harm principle, see, for example, Meir Dan-Cohen, Defending Dignity, in Meir Dan-Cohen, Harmful Thoughts: Essays on Law, Self, and Morality 150, 150 (2002) (arguing that liberalism's "harm principle" is not a "neutral standard" and considering its "replacement ... by ... the dignity principle: The view that the main goal of the criminal law is to defend the unique moral worth of every human being")
274. Arthur Ripstein, Beyond the Harm Principle, 34 Phil. & Pub Aff. 215, 215 (2006) (arguing that a "commitment to individual sovereignty within a sphere of action in which you are answerable only to yourself requires that we abandon the harm principle" in favor of "the sovereignty principle").
275. See, e.g., Andrew von Hirsch, Extending the Harm Principle: "Remote" Harms and Fair Imputation, in Harm and Culpability, supra note 41, at 259, 276 (arguing that it is "important to develop fair-imputation principles when dealing with remote risks," lest the harm principle lose its effectiveness as a limit on the state's power to punish).
276. John Stuart Mill, On Liberty 13 (Currin V. Shields ed., 1956) (1859).
277. For the classic modern statements of the harm principle, see 1 Joel Feinberg, The Moral Limits of the Criminal Law: Harm to Others (1984)
278. H.L.A. Hart, Law, Liberty and Morality (1963).
279. The harm principle should be understood as a necessary, but not a sufficient, condition for criminalization in a liberal state. See Douglas Husak, The Criminal Law As Last Resort, 24 Oxford J. Legal Stud. 207, 213-14 (2004).
280. For an argument to the effect that "[c]laims of harm have become so pervasive that the harm principle has become meaningless," see Bernard E. Harcourt, The Collapse of the Harm Principle, 90 J. Crim. L. & Criminology 109, 113 (1999).
281. See, e.g., Shlomit Wallerstein, Criminalizing Remote Harm and the Case of Anti-Democratic Activity, 28 Cardozo L. Rev. 2697, 2700 (2007) ("Whatever the exact meaning of the harm principle is, it is indisputable that thoughts and beliefs are excluded from consideration and, therefore cannot be restricted.").
282. See Kang, supra note 105, at 1580, 1585 (describing "numerous variations on a strategy of debiasing public service announcements (d-PSAs)" meant to "counter [the] implicit [biasing] fire [of local news] with implicit [debiasing] fire").