A defensible defense?: Reexamining castle doctrine statutes

Harvard Journal on Legislation

Volumn 47, Issue 2, 2010, Pages 523-553

  Levin, Benjamin ^a  

^a HARVARD LAW SCHOOL   (United States)

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EID: 77956911020     PISSN: 0017808X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (154)

1. For a detailed account of the facts (both disputed and undisputed) of the shooting, see Calvin Trillin, The Color of Blood: Race, memory, and a killing in the suburbs, NEW YORKER, Mar. 3, 2008, at 30-39.
2. Id. at 31-32.
3. Id. at 33.
4. See id. at 34.
5. See id. at 32.
6. Cf. National Rifle Association ("NRA") Inst. for Legislative Action, Nebraska: Castle Doctrine, Feb. 17, 2010, http://www.nraila.org/News/Read/InTheNews.aspx?ID=13415.
7. New York does recognize a weak form of the common law castle doctrine, but unlike more expansive recent castle law statutes, it still requires proof that the home dweller's fear of the intruder's imminent violent behavior was reasonable. See N.Y. PENAL LAW § 35.15 (Mc-Kinney 2004). Further, it does not presume a threat of imminent violence based on the intrusion alone. See § 35.15.
8. See Trillin, supra note 1, at 34.
9. See Nicholas Hirshon et al., Guilty Verdict for Black Dad in hooting Death of White Teen on Long Island, N.Y. DAILY NEWS, Dec. 23, 2007, available at http://www.nydailynews.com/news/ny_crime/2007/12/22/2007-12-22_guilty_ve rdict_for_black_dad_in_shooting.html.
10. See Trillin, supra note 1, at 30.
11. See id. at 35-36.
12. See infra notes 14-16.
13. See Trillin, supra note 1, at 32.
14. See John Lauinger & Carrie Melago, Sharpton, John White Rally Protesters after Long Island Race-Slay Verdict, N.Y. DAILY NEWS, Jan. 6, 2008, available at http://www.nydailynews.com/news/ny_crime/2008/01/06/2008-01-06_sharpton_ john_white_rally_protesters_aft-1.html.
15. See, e.g., Cyd Malone, The Tragedy of John White, NEWSLI.COM, Oct. 14, 2008, http://www.newsli.com/2008/10/14/the-tragedy-of-john-white/.
16. See, e.g., Selim Algar, Dad of Slay Victim Rages: Livid at Wrist Slap, N.Y. POST, Mar. 20, 2008, at 11. Following the rendering of the verdict, there were numerous allegations that jurors felt coerced (at times due to violent behavior by other jurors) to find White guilty. Interestingly, jurors claimed that for a long stretch before they reached consensus, the vote had been ten to two. See Patrick Whittle & Erik German, Jury in John White Trial Boiled with Tension, NEWSDAY, Jan. 5, 2008.
17. See Trillin, supra note 1, at 35.
18. See, e.g., Emily Ramshaw, Bills Would Arm Owners with Deadly Force Right, DALLAS MORNING NEWS, Feb. 27, 2008, available at http://www.dallasnews.com/sharedcontent/dws/news/texassouthwest/stories/ 022807dntexcastle.3abaea7.html ("'We already have excellent self-defense laws in Texas,' said Marsha McCartney, president of the North Texas Brady Campaign, which seeks to curb gun violence. 'They act like they're fixing some big problem, like people defending themselves are going to jail. And that's just not the case.'"); Nathan Thornburgh, Looking Kindly on Vigilante Justice, TIME, Jul. 3, 2008, available at http://www.time.com/time/nation/article/0,8599,1820028,00.html.
19. See, e.g., Algar, supra note 16.
20. Compare id. ("Despite pleas from Cicciaro's folks to impose the maximum, the judge opted for a lower sentence ...."), with John Moritz, Stronger Self-Defense Law Backed, FORT WORTH STAR-TELEGRAM, Feb. 1, 2007, at B1 ("Crime victims [sic] rights groups and the National Rifle Association have expressed support for the [proposed castle doctrine statute], saying it would tag the intruder as the sole criminal in such matters and not the property owner.").
21. See Chris Joyner, Taking Up Arms Against Intruders: 'Castle Doctrine' Laws, Justifying the Use of Deadly Force on Home Turf, Gain Ground, USA TODAY, Nov. 20, 2007, at A3.
22. See Renee Lettow Lerner, The Worldwide Popular Revolt Against Proportionality in Self-Defense Law, 2 J.L. ECON. & POL'Y 331, 333 (2006) ("A popular revolt against certain notions of proportionality has been underway for the past several decades in the United States, and for at least the past five years abroad.").
23. See, e.g., Stuart P. Green, Castles and Carjackers: Proportionality and the Use of Deadly Force in Defense of Dwellings and Vehicles, 1999 U. ILL. L. REV. 1 (1999); Lerner, supra note 22; Dirk Johnson, 'Make My Day': More Than a Threat, N.Y. TIMES, June 1, 1990, at A14; Editorial, Trigger-Happy: A Gun Bill Seeks to Fix a Law that Isn't Broken, PITTSBURGH POST-GAZETTE, Nov. 29, 2009, at B2 (arguing that a proposed Pennsylvania castle doctrine statute "would be an open invitation to needless trouble and it would complicate the lives of police officers ... all because of the guns-are-supreme mentality pushed by the National Rifle Association (which supports the bill) and others").
24. See Lerner, supra note 22, at 344-53 (describing analogous legislation in Europe and public demand for such laws in other countries).
25. Cf. RICHARD MAXWELL BROWN, NO DUTY TO RETREAT: VIOLENCE AND VALUES IN AMERICAN HISTORY AND SOCIETY (1991) (tracing concepts of duty to retreat through a history of Western frontier gunfights and gunfighters); Denise M. Drake, The Castle Doctrine: An Expanding Right to Stand Your Ground, 39 ST. MARY'S L.J. 573, 577-85 (2008) (historicizing the castle doctrine in Texas in light of descriptions of the doctrine as promoting "Wild West" values); P. Luevonda Ross, The Transmogrification of Self-Defense by National Rifle Association-Inspired Statutes: From the Doctrine of Retreat to the Right to Stand Your Ground, 35 S.U. L. REV. 1, 18-28 (2007) (discussing Florida's and Alabama's legislative rejection of a duty to retreat and citing other mostly southern states' similar legislative actions); J.P. Neyland, Note, A Man's Car Is His Castle: The Expansion of Texas' "Castle Doctrine" Eliminating the Duty to Retreat in Areas Outside the Home, 60 BAYLOR L. REV. 719, 727-35 (2008) (describing the evolution of Texas's self-defense legislation).
26. See, e.g., Jason W. Bobo, Following the Trend: Alabama Abandons the Duty to Retreat and Encourages Citizens to Stand Their Ground, 38 CUMB. L. REV. 339, 363-65 (2007); Elaine M. Chiu, Culture in Our Midst, 17 U. FLA. J.L. & PUB. POL'Y 231, 244-47 (2006); Dan M. Kahan, The Secret Ambition of Deterrence, 113 HARV. L. REV. 413 (1999); Steven P. Aggergaard, Case Note, Retreat from Reason: How Minnesota's New No-Retreat Rule Confuses the Law and Cries for Alteration-State v. Glowacki, 29 WM. MITCHELL L. REV. 657, 659-62, 693 (2002); Michelle Jaffe, Note, Up in Arms Over Florida's New "Stand Your Ground" Law, 30 NOVA L. REV. 155, 156 (2005).
27. See, e.g., Green, supra note 23; Local Officials Applaud Castle Doctrine, TENNESSEAN, June 15, 2007 ("[NRA lobbyist Chris] Cox said the legislation is a victim's rights measure that puts the law on the side of victims 'who don't have the luxury of time when confronted by a criminal.'"); Roland Paolucci, Letter to the Editor, Shoot First, Ask Questions Later, AKRON BEACON J., June 1, 2005, at B3 (arguing that Ohio should pass a castle doctrine statute and declaring that "[i]t is time for Ohio to protect its residents and change the focus back to victim's [sic] rights, instead of coddling criminals.").
28. For more detailed historical accounts of the duty to retreat, see generally BROWN, supra note 25, at 3-38; JEANNIE SUK, AT HOME IN THE LAW: HOW THE DOMESTIC VIOLENCE REVOLUTION IS TRANSFORMING PRIVACY 58-65 (2009).
29. See, e.g., Joseph H. Beale, Jr., Retreat from a Murderous Assault, 16 HARV. L. REV. 567 (1903).
30. Id. at 568; see also FREDERICK POLLOCK AND FREDERIC WILLIAM MAITLAND, THE HISTORY OF ENGLISH LAW BEFORE THE TIME OF EDWARD I, 477 n.1 (Cambridge: At The University Press, 2d ed. 1899) (1898) ("so late as 1328 it was argued that a plea of the dead man's outlawry was a sufficient answer to an indictment for slaying him").
31. This Part uses "man" instead of person, as that is the language of the laws and commentary of these historical periods. Further, it is not clear whether these defenses were in fact available to women, or whether there is any case law on the subject.
32. BROWN, supra note 25, at 4. Unlike a justifiable homicide, excusable homicide carried with it an element of guilt. That said, the punitive weight attached to this guilt was slight, and by the time of Blackstone's Commentaries, there was rarely any penalty levied for such homicides. Id.
33. Id.
34. Id. at 3.
35. WILLIAM BLACKSTONE, 4 COMMENTARIES 423.
36. Id.
37. See BROWN, supra note 25, at 4; SUK, supra note 28, at 58.
38. WILLIAM BLACKSTONE, 4 COMMENTARIES 184-85. The choice of the word "satisfaction," with its implication of vengeance, may suggest that Blackstone is referring less to situations where a homicide was committed as an instinctive defensive act than to situations where homicide was chosen. Indeed, the phrase vindices injuriam translates as either the "avengers" or "punishers" of injury. The statement therefore suggests that the law and the state act not to prevent injury (or act before it has occurred), but rather to punish or act afterwards.
39. See, e.g., BROWN, supra note 25, at 5; SUK, supra note 28, at 59-60; Christine Catalfamo, Stand Your Ground: Florida's Castle Doctrine for the Twenty-First Century, 4 RUTGERS J.L. & PUB. POL'Y 504, 507-11 (2007).
40. See also BROWN, supra note 25, at 16-17 (citing Runyan v. State, 57 Ind. 80, 83 (1877) ("The tendency of the American mind seems to be very strongly against ... requiring a person to flee when assailed.")).
41. See SUK, supra note 28, at 59-60; see, e.g., BROWN, supra note 25, at 17-20, 31, 39-47.
42. 57 Ind. at 83. For a narrative account of the facts and procedural posture of the case, see BROWN, supra note 25, at 10-17.
43. 29 Ohio St. 186, 195, 199-200 (1876).
44. 256 U.S. 335 (1921).
45. Id. at 343. In his discussion of cultural values and their impact on debates about legal doctrine, Professor Dan Kahan suggests that Justice Holmes was motivated by a rationale similar to that of the "true man" espoused in Erwin. See Kahan, supra note 26, at 429-35. While it certainly may be that Justice Holmes's reliance on the language of deterrence masks a strongly expressive or culturally motivated interpretation of the law's role in home invasion cases, it is significant that an alternative to the "true man" justification was not only provided, but was the alternative the Supreme Court embraced.
46. See SUK, supra note 28, at 58-59. A century before Blackstone's Commentaries, Lord Hale set forth an identical rationale for the duty to retreat. See MATTHEW HALE, HISTORY OF THE PLEAS OF THE CROWN 481 (P. R. Glazebrook ed., Professional Books Ltd. 1971) (1678) ("[I]n cases of hostility between two nations it is a reproach and piece of cowardice to fly from an enemy, yet in cases of assaults and affrays between subjects under the same law, the law owns not any such point of honour, because the king and his laws are to be the vindices injuriarum, and private persons are not trusted to take capital revenge one of another.").
47. See Beale, supra note 29, at 574-75; see also Semayne's Case, (1604) 77 Eng. Rep. 194, 195 (K.B.); Catalfamo, supra note 39, at 505.
48. See Catherine L. Carpenter, Of the Enemy Within, the Castle Doctrine, and Self-Defense, 86 MARQ. L. REV. 653, 665 (2003).
49. See State v. Carothers, 594 N.W.2d 897, 900 (Minn. 1999) (quoting State v. Touri, 112 N.W. 422, 424 (Minn. 1907)); SUK, supra note 28, at 58-59; Carpenter, supra note 48.
50. For a more detailed discussion of the derivation of the doctrine's name, see Carpenter, supra note 48, at 656 n.10.
51. See BLACKSTONE, supra note 38, at 223; SUK, supra note 28, at 58 (in the home, the tender regard for peace of which Blackstone spoke was overridden by "tender ... regard to the immunity of a man's house").
52. See SUK, supra note 28, at 59.
53. See, e.g., People v. Tomlins, 107 N.E. 496, 497 (N.Y. 1914). Judge Cardozo asserted: It is not now and never has been the law that a man assailed in his own dwelling is bound to retreat. If assailed here he may stand his ground and resist the attack. He is under no duty to take to the fields and the highways, a fugitive from his own home.... Flight is for sanctuary and shelter, and shelter, if not sanctuary, is in the home. That there is, in such situation, no duty to retreat is, we think, the settled law in the United States as in England. Id.
54. See, e.g., Jones v. State, 76 Ala. 8, 16 (1884) ("It is an admitted doctrine of our criminal jurisprudence, that when a person is attacked in his own house, he is not required to retreat further .... The law regards a man's house as his castle, or, as was anciently said, his tutissimum refugium, and having retired thus far, he is not compelled to yield further to his assailing antagonist."); Storey v. State, 71 Ala. 329, 337 (1882) ("Of course, where one is attacked in his own dwelling-house, he is never required to retreat. His 'house is his castle,' and the law permits him to protect its sanctity from every unlawful invasion." (internal citations omitted)); People v. Zuckerman 132 P.2d 545, 549-50 (Cal. Dist. Ct. App. 1942) ("California courts have definitely rejected the antiquated doctrine that a defendant will be justified in killing his assailant in self-defense only after he has used every possible means of escape by fleeing, [including] 'retreating to the wall.'"); State v. Middleham, 17 N.W. 446, 447-48 (Iowa 1883) ("This instruction, as applied to the facts of this case, in so far as it makes it incumbent upon the defendant to retreat, is, we think, erroneous. The defendant at the time of the difficulty was in his own house."); Pond v. The People, 8 Mich. 150, 177 (1860) ("A man is not, however, obliged to retreat if assaulted in his dwelling, but may use such means as are absolutely necessary to repel the assailant from his house, or to prevent his forcible entry, even to the taking of life.").
55. The nineteenth-century cases identifying the castle doctrine as a fixture of the common law frequently relied on citations to scholarly literature and treatises as opposed to cases, perhaps as a means of attempting to invoke the philosophical justifications that these earlier works had provided for the often contentious realm of self-defense and also to make the exceptional doctrine seem settled and canonical. See, e.g., Middleham, 17 N.W. at 448 ("In Horrigan and Thompson's Cases on Self Defense, page 33, it is said: 'A man, being in his habitation, is at the wall and in his castle, and is not obliged to retreat under any circumstances.'").
56. See JOEL PRENTISS BISHOP, NEW COMMENTARIES ON THE CRIMINAL LAW UPON A NEW SYSTEM OF LEGAL EXPOSITION 517 (T.H. Flood and Company, Law Publishers ed., 8th ed. 1892).
57. Id.
58. What the latter part of the twentieth century did contribute to the realm of self-defense law was a series of doctrinal and philosophical changes relating to domestic violence. With the rise of feminism in legal scholarship and jurisprudence, gender dynamics and gender roles took on a great deal of importance in debates over when a person is permitted to resort to violence for self-preservation. There has been significant scholarship on domestic violence, the concept of the "battered woman" or "battered person," and the use of the so-called Battered Woman Syndrome in formulating a defense. See generally SUK, supra note 28; Carpenter, supra note 48. Some of these concepts will recur later in the discussion of the possible per- verse consequences of the castle doctrine.
59. See, e.g., Act of May 6, 2006, ch. 194, § 4, 2006 Kan. Sess. Laws 1362, 1363 (codified at KAN. STAT. ANN. § 21-3212 (2008)) (general statement of castle doctrine originally drafted in 1969, but amended in 2007 to expand the language and include: "(c) Nothing in this section shall require a person to retreat if such person is using force to protect such person's dwelling"). See generally People v. Toler, 9 P.3d 341, 346-49 (Colo. 2000) (discussing differences in duty to retreat laws from state to state).
60. See, e.g., Act of Apr. 26, 2005, ch. 27, § 1, sec. 776.013(1), 2005 Fla. Laws 199, 200 (codified at FLA. STAT. § 776.013(1) (2010)). The Florida act includes relatively expansive castle doctrine language, which provides a very strong presumption in favor of the homeowner that an intruder poses an imminent threat of intended violence. To that effect, it reads: "A person who unlawfully and by force enters or attempts to enter a person's dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence." Id. § 1, sec. 776.013(4), 2005 Fla. Laws at 201 (codified at FLA. STAT. § 776.013(4)). In addition, this law merges with the earlier "true man" laws eliminating a duty to retreat in public places by including: A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a forcible felony. Id. § 1, sec. 776.013(3), 2005 Fla. Laws at 201 (codified at FLA. STAT. § 776.013(3)).
61. See SUK, supra note 28, at 73-80; Sam Cook, 'Stand Your Ground' a Recipe for Disaster, NEWS-PRESS (Fort Myers, Fla.), Oct. 5, 2005, at B1 ("Florida's 'Stand Your Ground' law ... is an accident waiting to happen."); Michelle Cottle, Shoot First, Regret Legislation Later, TIME, May 9, 2005, at 80; Debi Drewes, Letter to the Editor, Fear Breeds Fear; Guns Breed Death, ST. PETERSBURG TIMES (Fla.), Oct. 17, 2005, at 2 ("[W]here is the sense or intelligence in the right to shoot another being based on brief and fleeting impressions of threat or fear for safety?"); Arthur C. Hayhoe, Op-Ed., NRA's Magic Words, TAMPA TRIB. (Fla.), May 20, 2005, at 13 ("We have several million untrained gun owners in Florida. If you embolden gun owners to act more aggressively, as this new bill certainly does, there will be many innocent victims."); NPR Day to Day: Stand Your Ground, Gun in Hand (NPR radio broadcast Oct. 3, 2005), available at http://www.npr.org/templates/story/story.php?storyId=4934076 ("[I]f you live in Florida, or plan on traveling there, a few key things to keep in mind so you don't get, you know, shot. First, don't look at anyone funny. In fact, avoid making eye contact with people."). Interestingly, however, despite the intense critical response that the Florida statute elicited, the statute appears in many ways to be simply a codification of the state's strong common law commitment to the castle doctrine. See Weiand v. State, 732 So. 2d 1044, 1049-50 (Fla. 1999) (stating that "[i]t is not now and never has been the law that a man assailed in his own dwelling is bound to retreat," before citing a long strand of Florida cases supporting the common law castle exception to the duty to retreat (citing People v. Tomlins, 107 N.E. 496, 497 (N.Y. 1914))); see also Hedges v. State, 172 So. 2d 824, 827 (Fla. 1965); Pell v. State, 122 So. 110, 116 (Fla. 1929); Danford v. State, 43 So. 593, 598-99 (Fla. 1907); Wilson v. State, 11 So. 556, 561 (Fla. 1892).
62. CHRISTOPHER REINHART, CONN. GEN. ASSEMBLY, CASTLE DOCTRINE AND SELF-DEFENSE 1-2 (2007), available at http://www.cga.ct.gov/2007/rpt/2007-R-0052.htm.
63. Carpenter, supra note 48, at 657.
64. For a discussion of the distinctions between different states' statutory schemes, see infra notes 67-76.
65. See NRA Inst. for Legislative Action, Fortifying the Right to Self-Defense, Feb. 6, 2006, http://www.nraila.org/Issues/FactSheets/Read.aspx?id=188 [hereinafter Fortifying the Right to Self-Defense]; NRA Inst. for Legislative Action, This Train Keeps a Rollin', July 28, 2006, http://www.nraila.net/Issues/Articles/Read.aspx?ID=199; cf. Carpenter, supra note 48, at 657 (specifying that the "castle doctrine" refers only to a certain situation in which duty to retreat is removed).
66. See ME. REV. STAT. ANN. tit. 17-A, § 104(3)(B)(1) (West 2009).
67. Act of June 15, 2006, ch. 68, § 3, 2006 Alaska Sess. Laws 1, 3-4 (codified at ALASKA STAT. § 11.81.335(b) (2008)).
68. N.C. GEN. STAT. § 14-51.1 (2009).
69. See, e.g., CAL. PENAL CODE § 198.5 (Deering 2008).
70. Id.
71. Compare id. (shifting the burden to the prosecution), and R.I. GEN. LAWS § 11-8-8 (2002) ("In the event that any person shall die or shall sustain a personal injury in any way or for any cause while in the commission of any criminal offense enumerated in §§ 11-8-2 - 11-8-6, it shall be rebuttably presumed as a matter of law in any civil or criminal proceeding that the owner, tenant, or occupier of the place where the offense was committed acted by reasonable means in self-defense and in the reasonable belief that the person engaged in the criminal offense was about to inflict great bodily harm or death upon that person or any other individual lawfully in the place where the criminal offense was committed."), with CONN. GEN. STAT. ANN. § 53a-20 (West 2007 & Supp. 2008) ("A person in possession or control of premises, or a person who is licensed or privileged to be in or upon such premises, is justified in using reasonable physical force upon another person when and to the extent that he reasonably believes such to be necessary to prevent or terminate the commission or attempted commission of a criminal trespass by such other person in or upon such premises; but he may use deadly physical force under such circumstances only (1) in defense of a person as prescribed in section 53a-19, or (2) when he reasonably believes such to be necessary to prevent an attempt by the trespasser to commit arson or any crime of violence, or (3) to the extent that he reasonably believes such to be necessary to prevent or terminate an unlawful entry by force into his dwelling as defined in section 53a-100, or place of work, and for the sole purpose of such prevention or termination.").
72. See supra note 60 and accompanying text.
73. FLA. STAT. ANN. § 776.013(3) (LexisNexis Supp. 2010).
74. ALASKA STAT. § 11.81.335(b)(1) (2008).
75. Act of Apr. 21, 2006, ch. 192, § 4, 2006 Ky. Acts 707, 708 (codified at KY. REV. STAT. ANN. § 503.080(3) (West 2009)).
76. Act of Apr. 24, 2006, ch. 199, § 3, 2006 Ariz. Sess. Laws 626, 627 (codified at ARIZ. REV. STAT. ANN. § 13-411(B) (2009)).
77. See SUK, supra note 28, at 61.
78. See GEORGE FLETCHER, RETHINKING CRIMINAL LAW 855-59 (Little Brown ed. 1978).
79. See infra note 89 and accompanying text.
80. See, e.g., FLETCHER, supra note 78, at 60-75; Fortifying the Right to Self-Defense, supra note 65.
81. See Hugo Bedau, The Right to Life, 52 MONIST 550, 568 (1968) (quoting W. DAVID ROSS, THE RIGHT AND THE GOOD 60-61 (1930)).
82. See id. Stuart Green provides a useful outline of the various philosophical justifications for defensive killings. See Green, supra note 23, at 19-25. For his discussion of "moral forfei- ture," see id. at 20.
83. See George P. Fletcher, Proportionality and the Psychotic Aggressor: A Vignette in Comparative Criminal Theory, 8 ISRAEL L. REV. 367, 380 (1973).
84. See, e.g., Fortifying the Right to Self-Defense, supra note 65 ("Without doubt, Florida's recently enacted 'Castle Doctrine' law is good law, casting a common-sense light onto the debate over the right of self-defense. It reverses the pendulum that for too long has swung in the direction of protecting the rights of criminals over the rights of their victims."). Some scholars have leveled strong criticism at the forfeiture theory. See, e.g., SUZANNE UNIACKE, PERMISSIBLE KILLING: THE SELF-DEFENCE JUSTIFICATION OF HOMICIDE 191 (1994) ("A theory which maintains that an unjust aggressor forfeits the right to life cannot [ground] the justification of homicide in self-defence [sic]."); Bedau, supra note 81; Jeffrie G. Murphy, Marxism and Retribution, 2 PHIL. & PUB. AFF. 217 (1973). There is a systemic critique of the forfeiture theory, for instance, that relies on an objection to the concept of a social contract between citizens of the state. See, e.g., Murphy, supra; Tom Dannenbaum, Note, Crime Beyond Punishment, 15 U.C. DAVIS J. INT'L L. & POL'Y 189, 201-202 (2009); Bailey Kuklin, Article, "You Should Have Known Better," 48 KAN. L. REV. 545, 578 n.109 (2000). In the context of racially disproportionate enforcement and prosecution, this line of argument has been focused on the relationship between blacks and the American social contract. Professor Paul Butler, in suggesting that black jurors should practice nullification to prevent over-incarceration of black defendants, writes that the form of "democracy" represented by the American social contract "has betrayed African Americans far more than they could ever betray it." Paul Butler, Racially Based Jury Nullification: Black Power in the Criminal Justice System, 105 YALE L. J. 677, 693 (1995). For a broader discussion of the critique of the social contractual approach to criminal culpability, see also RANDALL KENNEDY, RACE, CRIME, AND THE LAW, 295-310 (1997).
85. Press Release, NRA Inst. for Legislative Action, West Virginia Governor Signs 'Castle Doctrine' Legislation! (Mar. 14, 2008), available at http://www.nraila.org/Legislation/Read.aspx?id=3672.
86. See Marion P. Hammer, Letter to the Editor, Anti-Gun Groups Mislead on Self-Defense Laws, FLA. TODAY (Melbourne, Fla.), Oct. 15, 2005, at A10 (praising a recently passed Florida statute codifying castle doctrine, saying that it puts "Florida law ... on the side of law-abiding victims rather than criminals. And that is the way it is supposed to be"); Fortifying the Right to Self-Defense, supra note 65 (arguing that the Florida castle law "gives rights back to law- abiding people and forces judges and prosecutors to focus on protecting victims"); see also supra note 27.
87. See generally Douglas E. Beloof, The Third Wave of Crime Victims' Rights: Standing, Remedy, and Review, 2005 B.Y.U. L. REV. 255, 265-73 (2005); Vik Kanwar, Capital Punish ment as "Closure": The Limits of a Victim-Centered Jurisprudence, 27 N.Y.U. REV. L. & SOC. CHANGE 215, 222-37 (2002); Paul H. Robinson, Should the Victims' Rights Movement Have Influence Over Criminal Law Formulation and Adjudication?, 33 MCGEORGE L. REV. 749, 755-57 (2002); Shannon Brownlee et al., The Place for Vengeance, U.S. NEWS & WORLD REP., June 16, 1997, at 24; Alan Turner, Making Life Miserable for Felons, HOUSTON CHRON., June 11, 2000, at A35.
88. See Beloof, supra note 87, at 262-74; see, e.g., ALASKA STAT. § 12.61.010 (1984); Stephen E. Branchflower, The Alaska Office of Victims' Rights: A Model for America, 21 ALASKA L. REV. 259 (2004). In empowering the victim, victims' rights efforts also empower the state. While the rights conferred by victims' rights legislation are ostensibly rights granted to the victim against the defendant, they require state action to enforce and are therefore rights granted to the state against the defendant in the Hohfeldian or legal realist sense. The right to restitution, for example, necessarily empowers the state to compel restitution.
89. See Bruce Shapiro, Victims & Vengeance: Why the Victims' Rights Amendment Is a Bad Idea, NATION, Feb. 10, 1997, at 11, 12-16 (arguing that a focus on vengeance has become the politically dominant strand in the victims' rights movement); cf. Marshall N. Perkins, Beyond the Roar of the Crowd: Victim Impact Testimony Collides with Due Process, 27 U. BALT. L.F. 31, 36 (1997) (arguing that victim impact statements are "more appropriately analyzed in terms of personal revenge rather than retribution").
90. See supra note 38 and accompanying text.
91. R.I. GEN. LAWS § 11-8-8 (2002).
92. See FLETCHER, supra note 78, at 860-75; Green, supra note 23, at 24; see, e.g., John Q. La Fond, The Case for Liberalizing the Use of Deadly Force in Self-Defense, 6 U. PUGET SOUND L. REV. 237, 243-44, 279 (1983).
93. See, e.g., La Fond, supra note 92, at 243-44.
94. It is essential to stress that the debate regarding whose rights to favor in the context of the castle doctrine is not the same as a debate over the recognition of property rights (as to who has a Hohfeldian right/no right to enter property); rather, this is an issue of a right to selfpreservation. This is yet another reason why it seems so important to differentiate among the statutes referred to as castle laws. There is an uneasy tension between property law and criminal law in the discussion of the castle doctrine that can create the impression that, as a legal concept, the castle doctrine is geared towards preservation of property ownership rather than life. While some castle doctrine-type statutes may emphasize property rights, those that truly operate within the framework of the castle doctrine as a common law principle are explicit in permitting defense of self as opposed to property. See, e.g., Wesley Newcomb Hohfeld, Fundamental Legal Conceptions as Applied in Judicial Reasoning, 26 YALE L.J. 710 (1917). For an example of a property-centered statute, see KY. REV. STAT. ANN. § 503.080 (Lexis-Nexis 2008 & Supp. 2009). For an example of a statute that focuses on preservation of life as opposed to protection of property, see HAW. REV. STAT. ANN. § 703-304 (LexisNexis 2007 & Supp. 2009).
95. See MODEL PENAL CODE § 3.02 (1985) (choice of evils); id. § 3.04(1)(c) ("[T]he use of force upon or toward another person is justifiable when the actor believes that such force is immediately necessary for the purpose of protecting himself against the use of unlawful force by such other person on the present occasion.").
96. See, e.g., id. § 3.04.
97. See, e.g., id.; see also id. §§ 3.04(1), 3.05(1). It is true that the Model Penal Code specifies that the force that triggers the right to self-defense must be "unlawful," but this is in no way the same as allowing the use of force in response to any unlawful behavior. Indeed, the Model Penal Code prescribes special requirements of "necessity" and "imminence" to suggest that this is a general right that should be recognized narrowly.
98. CONN. GEN. STAT. ANN. § 53a-20 (West 2007 & Supp. 2009).
99. CAL. PENAL CODE § 198.5 (Deering 2008).
100. See, e.g., Sanford H. Kadish, Respect for Life and Regard for Rights in the Criminal Law, 64 CAL. L. REV. 871, 885 (1976) (identifying this right against the state based on the natural rights language of Locke, Hobbes, and Rawls); see also UNIACKE, supra note 84, at 156-60 (describing an analogous "unlawful aggression" definition to the one espoused by Dean Sanford Kadish); Green, supra note 23, at 22 (identifying Kadish as one of the primary proponents of this theory of "the right to resist unlawful aggression").
101. See Kadish, supra note 100, at 885 ("[T]he individual's surrender of prerogative to the state yields a quid pro quo of greater, not lesser, protection against aggression than he had before.").
102. See Fletcher, supra note 83, at 380 ("[A]ggression breaches an implicit contract among autonomous agents, according to which each person ... is bound to respect the living space of all others. The intrusion upon someone's living space itself triggers a justified response."); see also Green, supra note 23, at 24.
103. See, e.g., supra note 38 and accompanying text.
104. See Green, supra note 23, at 22; see, e.g., Kadish, supra note 100, at 895.
105. See Brown v. United States, 256 U.S. 335, 343 (1921); see also supra notes 44, 45 and accompanying text. Professor Fletcher poses a hypothetical in which a "psychotic aggressor," who intends no harm but who in fact poses a great threat, attacks another individual. Fletcher concludes that at the moment the of the attack the culpability of the aggressor is inconsequen certial. Fletcher, supra note 83, at 371. Now imagine a rule requiring the home dweller to assess the aggressor's moral culpability. While one might conceive of a motivation for such a rule other than to value the rights of the aggressor more highly than the rights of the home dweller, such a rule might well reflect this prioritization in its application.
106. See, e.g., Cottle, supra note 61, at 80 ("It's as if the text of a real bill somehow got transposed with dialogue from a 1970s Dirty Harry paean to vigilantism."); Thornburgh, supra note 18 (discussing the way the castle doctrine relates to Texas's "gun-nut reputation").
107. See, e.g., BROWN, supra note 25, at 6 ("In the realms of both peace and war, it is not in the nature of America to approve retreat"); id. at 158 ("It is obvious that the legal and individual doctrine of no duty to retreat is highly cognate with the broad social theme of conquest." (emphasis added)).
108. See, e.g., id. at 166 ("A Texan with a family background deeply rooted in the embattled nineteenth-century pioneer era of Texas, [President Lyndon B.] Johnson thought naturally in terms of concepts strongly held in Texas: no duty to retreat, standing one's ground, and I'll die before I'll run." (footnote omitted)); SUK, supra note 28, at 84-85 (analogizing the attacks of September 11, 2001 to the invasion of the home, and drawing a parallel between the rise in popularity of the castle doctrine and the War on Terror rhetoric of defending the home front).
109. See generally RICHARD SLOTKIN, THE FATAL ENVIRONMENT: THE MYTH OF THE FRONTIER IN THE AGE OF INDUSTRIALIZATION, 1800-1890 (1985) [hereinafter THE FATAL ENVIRONMENT] (deconstructing the myth of the frontier and outlining how frontier culture affected development of mass culture and politics); RICHARD SLOTKIN, GUNFIGHTER NATION: THE MYTH OF THE FRONTIER IN TWENTIETH-CENTURY AMERICA (1992) (tracking these themes' development into the twentieth century); WILL WRIGHT, SIX GUNS AND SOCIETY: A STRUCTURAL STUDY OF THE WESTERN (1975) (exploring the Western film genre, as well as the political and social implications of the Western as a cultural construction); BOWLING FOR COLUMBINE (United Artists 2002) (discussing links between imperialism, racism, gun violence, and the frontier in United States history and culture).
110. See, e.g., Roger Croteau, Leadership Raised as Issue in Race for Hill Country Seat, SAN ANTONIO EXPRESS-NEWS, Feb. 25, 2008, at B1 (describing a congressman's "strong, conservative representation" of his district as epitomized by his co-authoring a castle doctrine law and supporting mandatory minimum prison terms for child sex offenders); Michael Brendan Dougherty, Plain Right, AM. CONSERVATIVE, Mar. 9, 2009, at 6, 8 ("Sanford's conservative credentials compare favorably to anyone else mentioned as a 2012 presidential contender. He calls the public-education system 'a Soviet-style monopoly.' He promoted school choice through tax rebates to avoid the appearance of government control. He passed a 'Castle doctrine' bill that was supported by the NRA. He favors a law-and-order approach to immigration, but opposed REAL ID on civil liberties grounds. Though he avoids showy displays of piety, he is reliably pro-life."); Chris Joyner, State's Castle Doctrine Puts Power in Hands of Victims, Advocates Say, CLARION-LEDGER (Jackson, Miss.), Nov. 5, 2007, at A1 ("Mississippi's castle doctrine law was met with wide popular acclaim in this conservative, gun-friendly state"); Rebecca Lé on, Senate Panel Kills 'Castle Doctrine' Bill, ALTAVISTA J., Mar. 8, 2010, http://www.wpcva.com/articles/2010/03/08/chatham/news/news37.txt ("[the Virginia castle doctrine bill] was struck down by the Senate Courts of Justice Committee on a 9-6 party-line vote Wednesday. All of the Democrats on the panel voted to kill the bill; all of the Republicans wanted to keep it alive."); Kelsey Palmer, Op-Ed., Chuck Hopson is a Conservative, JACKSONVILLE PROGRESS, Feb. 27, 2010, http://jacksonvilleprogress.com/opinion/x1834678612/Chuck-Hopson-is-a-co nservative ("The idea that Chuck is not conservative is ridiculous! From coauthoring the Castle Doctrine to sponsoring small business tax exemptions, Chuck has been for limited government involvement in our business and personal lives."); Mannix Porterfield, Senator Confident About 'Castle Doctrine' Bill, FAYETTE TRIB., Oct. 4, 2007, http://www.fayettetribune.com/local/x211932306/Senator-confident-about-c astle-doctrinebill?%20target= ("'You have some very liberal individuals who don't want that bill at all'") (quoting a state representative); Anthony J. Sebok, Florida's New "Stand Your Ground" Law: Why It's More Extreme Than Other States' Self-Defense Measures, and How It Got That Way, FINDLAW, May 2, 2005, http://writ.news.findlaw.com/sebok/20050502.html ("[The Florida statute's] real purpose seems to be the capital punishment of property-criminals."); cf. Kahan, supra note 26, at 435-36.
111. See, e.g., Leah Rupp, Candidates in District 29 Race Discuss Education, Experience, CLARION-LEDGER (Jackson, Miss.), Oct. 14, 2007, at B1 ("'He voted for right-to-life, the Castle Doctrine, balanced budgets,' the interim Byram mayor said. 'Just about any issue you can think of, he's voted for the conservative side of it.'"); Kelley Shannon, Bill Strengthens Texans' Right to Use Deadly Force, HOUSTON CHRON., Mar. 20, 2007, http://www.chron.com/disp/story.mpl/metropolitan/4647268.html ("The bill, pushed by Republican lawmakers and backed by the National Rifle Association, states that a person has no duty to retreat from an intruder in his or her home."); cf. Kahan, supra note 26, at 441, 489. While identifying left or right on a political spectrum is far from the purpose of Kahan's piece, the logic of the article, much like the discourse on the castle doctrine or no duty to retreat statutes, seems preoccupied with presenting dichotomous relationships predicated upon (occasionally inconsistent) packages of beliefs and views. In creating his groupings, which are generally descriptive and based on social scientific data, Kahan concedes that "no necessary [philosophical] link" exists between, say, a view on abortion and the death penalty. Id. at 440. In his own grouping of "citizens who support egalitarianism and civic solidarity" and "citizens who support hierarchy and individualism," however, there is an implicit identification of shared values, motives, and ideals that underlie certain political positions. See id. at 489.
112. See supra notes 110-111.
113. See Kahan, supra note 26, at 489 (identifying the distinctions between "[c]itizens who support egalitarianism and civic solidarity" and "citizens who support hierarchy and individualism," while linking these groups to opposing views on hot-button social issues).
114. See, e.g., JACQUES DERRIDA, OF GRAMMATOLOGY 141-64 (Gayatri Chakravorty Spivak trans., Johns Hopkins Univ. Press 1976) (1967).
115. See generally Kahan, supra note 26. While Kahan does discuss the "true man" doc- trine and situates its proponents on the conservative side, he does not mention the castle doctrine. However, proponents of "true man" laws tend to also support castle doctrine laws, so much so that the two concepts tend to merge. See supra note 65 and accompanying text.
116. The alternatives proposed here do not necessarily describe the way most people situate themselves politically, but a consideration of the alternative narratives or ideological schemas may cause people to reconsider their views on various doctrines. As noted above, Kahan draws much of his framework from surveys and social scientific data, which are intended to represent the way people actually think about these different policy issues. See supra note 111. That said, it is also important to note the limited sample size of any such survey. Cf. James E. Bartlett, II et al., Organizational Research: Determining Appropriate Sample Size in Survey Research, 19 INFO. TECH., LEARNING & PERFORMANCE J. 43, 43-44 (2001). Indeed, one of the primary flaws in the dichotomous right/left, Democrat/Republican schema in considering political ideology in the United States is the low rate of voter turnout and the statistically unimpressive number of people registered as members of the two major parties. See Editorial, Extreme Partisanship Isn't Serving the Public, GREELEY TRIB. (Colo.), Feb. 3, 2010, available at http://www.greeleytribune.com/article/20100203/OPINION/100209923&par entprofile=search ("There are about 55 million registered Republicans, 72 million registered Democrats and 42 million registered independents...."); cf. Press Release, Ctr. for the Study of the Am. Electorate, Am. Univ., African-Americans, Anger, Fear and Youth Propel Turnout to Highest Level Since 1964 (Dec. 17, 2008), available at http://timeswampland.files.wordpress.com/2008/12/2008turnout-report_fina l11.pdf ("The turnout level [in the 2008 presidential election] was 63 percent of eligibles, a 2.4 percentage point increase over 2004 and the highest percentage to turn out since 64.8 percent voted for president in 1960."). Some political commentators and theorists posit that this is at least in part because most Americans fall in the center of the political spectrum. See, e.g., David Postman, Party Ties Mean Less As Voters Shift Their Allegiance, SEATTLE TIMES, Jan. 19, 2009, at A1 (declaring that "[t]he middle is back," in discussing the importance of independent voters in the 2008 presidential election). But another possible explanation is that those who have traditionally been politically inactive may simply fall on different ideological arcs than those espoused by the major political parties. That is, instead of falling on the curve that Kahan uses to connect the plotted points of the death penalty, gun control, etc., which is described in terms of "community" or "individualism," they may fall along an alternate curve with a different philosophy or a different set of priorities.
117. See supra note 111.
118. It is also important to consider the possibility that beliefs on one side of a dichotomy may shift over time or with an alteration in the political landscape. In fact, these oppositions may even cease to be affectively descriptive with political change. See, e.g., CARL SCHMITT, THE CONCEPT OF THE POLITICAL 75 (George Schwab trans., Univ. of Chi. Press, 2d ed. 1996).
119. See supra Part IV.
120. See SLOTKIN, THE FATAL ENVIRONMENT, supra note 109, at 17-47.
121. Id. at 17.
122. See, e.g., CAMPAIGN FOR AMERICA'S WILDERNESS, LET'S LEAVE AN ENDURING LEGACY OF WILD SPACES, available at http://leaveitwild.org/docs/CAW_brochure.pdf ("Wilderness has long shaped us as individuals and helped build us into a strong nation.").
123. See, e.g., D.J. MULLOY, AMERICAN EXTREMISM: HISTORY, POLITICS, AND THE MILITIA MOVEMENT 138-39 (2004) (discussing the reliance on frontier mythos and its image of "Americanness" among members of the contemporary militia movement).
124. See, e.g., ROLAND BARTHES, MYTHOLOGIES 124 (Annette Levers trans., Hill & Wang 1984) (1957); SLOTKIN, THE FATAL ENVIRONMENT, supra note 109, at 17-19.
125. Cf. BROWN, supra note 25, at 161 (describing McCarthyism and anti-communist cold war attitudes as examples of the application of the no duty to retreat ethos).
126. See id.
127. See id. at 87-127.
128. Id.
129. Cf. Robert L. Hale, Coercion and Distribution in a Supposedly Non-Coercive State, 38 POL. SCI. Q. 470, 472-73. Hale asserts that the scope of a given law's effects is necessarily dependent on the law's societal context (background conditions). See id. In particular, every labor contract is ultimately reliant on other background property laws that require the laborer to have money in order to live. See id.
130. See, e.g., SUK, supra note 28, at 77 (discussing the male focus of the castle doctrine); Ross, supra note 25, at 35-37 ("These new statutes present potential danger for society at large, but they particularly endanger racial minorities."); Thornburgh, supra note 18; The O'Reilly Factor: Talking Points: The Deaths of Two Illegal Aliens Near Houston (FOX News television broadcast Dec. 6, 2007) (highlighting the race and national origin of Joe Horn's victims as the most noteworthy element of the shootings); cf. Brad Bumsted, A Rally, a Banner, a Controversy, PITTSBURGH TRIB. REV., Apr. 29, 2007, http://www.pittsburghlive.com/x/pittsburghtrib/news/election/s_505007.ht ml (linking a potential threat to lynch a Latino lawmaker with a group of castle doctrine supporters).
131. See, e.g., Ralph Blumenthal, Shootings Test Limits of New Self-Defense Law, N.Y. TIMES, Dec. 13, 2007, at A32; Imaeyen Ibanga, Joe Horn: Bravado, Fear Fueled My Actions, ABC NEWS, July 2, 2008, available at http://abcnews.go.com/GMA/story?id=5291506&page=1; Thornburgh, supra note 18.
132. See, e.g., Blumenthal, supra note 131.
133. In his discussion of public perceptions of racially disparate impact of criminal laws and their enforcement, Professor Kennedy observes: One must be careful to avoid speaking with undue confidence about inferences regarding law enforcement that are drawn from the character of media coverage. First, even if media coverage suggests racial selectivity, that does not necessarily mean that law enforcement officials are responding in a racially selective manner. Second, even when it is the case that a crime featuring a white victim receives considerably more media and police attention than a similar crime featuring black victims, there remains the possibility that other, nonracial factors may be playing a role in the differential treatment. KENNEDY, supra note 84, at 72. Considering that most crimes in the United States are intraracial, id. at 23, and that low income black men are more likely to be the victims of crime than any other demographic, MICHAEL R. RAND, DEP'T OF JUSTICE, NATIONAL CRIME VICTIMIZATION SURVEY: CRIMINAL VICTIMIZATION, 2008 4 (2009), there is reason to believe that there is simply not a great appetite for reporting on such crimes, making them topics for "the back pages of the local press" as opposed to "a page-one cause ćel'ebre." KENNEDY, supra note 84, at 72-73.
134. See, e.g., Interview by Renee Giachino with Marion Hammer, former NRA President (Nov. 3, 2005), available at http://www.cfif.org/htdocs/freedomline/current/in_our_opinion/marion-ham mer-nra-interview.htm. In her defense of the Florida statute, Hammer describes weak women being threatened with rape: The duty to retreat had been imposed by the system and essentially if someone had tried to drag a woman into an alley to rape her, the women [sic]-even though she might be licensed to carry concealed and ready to protect herself, the law would not allow her to do it. Id.
135. See, e.g., SUK, supra note 28, at 65-72, 80; Carpenter, supra note 48, at 669-85.
136. See, e.g., Garland F. White, Neighborhood Permeability and Burglary Rates, 7 JUST. Q. 57, 64 (1990); Home Invasions Target the Have-Nots, INDIANAPOLIS STAR, Dec. 26, 2009, at A1 ("An Indianapolis Star analysis of crime data over the past 2 1/2 years found that the poorer the neighborhood, the more likely a home is to be the target of an armed break-in. And if a neighborhood is heavily Hispanic, home invasions are even more frequent.").
137. See, e.g., Alexandra Natapoff, Underenforcement, 75 FORDHAM L. REV. 1715, 1726 (2006); Thomas B. Priest & Deborah Brown Carter, Evaluations of Police Performance in an African American Sample, 27 J. CRIM. JUST. 457, 462-63 (1999) (presenting a study that demonstrates generally negative perceptions of police response time in black neighborhoods); Caitlin Rother, Oxnard; City to Study Police Response Times, L.A. TIMES, Mar. 6, 1992, at B3 ("La Colonia-area business operators ... say that city police often do not respond to emergency calls in the low-income neighborhood for up to an hour, if at all.").
138. It is, of course, important to realize that statistical studies do not always have the power to persuade in the face of contrary ideas deeply embedded in culture. See, e.g., Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. PA. L. REV. 1291 (2003). Even more importantly, statistical studies themselves are also open to interpretive biases. See BERNARD E. HARCOURT, LANGUAGE OF THE GUN: YOUTH, CRIME, AND PUBLIC POLICY 222-29 (2006). In his analysis of different social scientific studies, Professor Bernard Harcourt suggests that "leaps of faith" always occur as researchers attempt to make their data confirm their theory or ideology. Id. at 229. Harcourt, in his work, calls for a greater honesty about the existence of these leaps of faith and a recognition that social scientific data is not a universal truth and that the interpretation of such data is colored by personal ideology. Id. This Note's goal in evoking the possibility of empirical studies is not to express disagreement with Harcourt (or Kahan) by arguing that these data would prove conclusive or even that they would necessarily have the power to change the minds of those on either side of the castle doctrine debate. Rather, this Note suggests that situating the discussion in the framework of empirically traceable effects would at least acknowledge the possibility that expressive qualities of the law can belie antithetical results.
139. See generally Robert Cover, Violence and the Word, 95 YALE L.J. 1601 (1986), reprinted in THE CANON OF AMERICAN LEGAL THOUGHT 753-75 (David Kennedy & William W. Fisher III eds., 2006) (arguing that the law has life and death consequences and that legal interpretation that focuses on law in the abstract and neglects its effects is both unrealistic and insufficient).
140. See supra notes 69-71 and accompanying text.
141. See, e.g., Kevin Jon Heller, Beyond the Reasonable Man? A Sympathetic but Critical Assessment of the Use of Subjective Standards of Reasonableness in Self-Defense and Provocation Cases, 26 AM. J. CRIM. L. 1 (1998).
142. See, e.g., G. Todd Butler, Recipe for Disaster: Analyzing the Interplay Between the Castle Doctrine and the Knock-and-Announce Rule After Hudson v. Michigan, 27 MISS. C. L. REV. 435, 435 (2008) ("[L]egislators should opt to protect human life by declining to provide citizens with a 'shoot first, ask questions later' mentality."); Tresa Baldas, "Shoot First" Laws Hit Courtrooms, DAILY REP. (FULTON COUNTY), July 11, 2006, at 10 ("Hagel opposes shootfirst laws; he feels that such laws can lead to deadly mistakes.... 'Common law has always said we always value human life more than your sense of manhood,' said Hagel."); Mary Elen Klas, Law Would Expand the Right to Shoot, MIAMI HERALD, Feb. 24, 2005, at B1 ("Florida is a state that 'has been very vigilant in preserving and valuing human life' but the legislation 'flies in the face of that value. This really encourages people to shoot first and ask questions later.'" (quoting an assistant state attorney)); Rene Thompson, Letter to the Editor, "Shoot First" Bill Allows Fear To Determine Value of a Life, CIN. POST, Mar. 22, 2006, at A15 ("The Kentucky Legislature wants to change that doctrine and, with it, the value of a human life in the commonwealth.").
143. MODEL PENAL CODE § 3.04(2)(b)(ii) (1985). The Model Penal Code does include a castle doctrine provision, but this section refers to the general duty to retreat outside of the home as a means of demonstrating what the duty for the home dweller would be in a state that had not adopted a castle law statute. See id.
144. HAW. REV. STAT. ANN. § 703-304(4) (2007).
145. See generally SANFORD H. KADISH ET AL., CRIMINAL LAW AND ITS PROCESSES 780-81 (8th ed. 2007) (providing a series of hypothetical situations in which a person could easily retreat instead of killing an aggressor in his or her home but is not legally obligated to do so).
146. See, e.g., Culverson v. State, 797 P.2d 238, 240 (Nev. 1990) (declining to impose a duty to retreat because of the potential difficulty faced by jurors in determining "complete safety").
147. See generally KADISH ET AL., supra note 145, at 80.
148. See Blumenthal, supra note 131.
149. See, e.g., supra note 136.
150. See supra note 137; KENNEDY, supra note 84, at 71.
151. See KENNEDY, supra note 84, at 232-37.
152. While one's personal views on criminalization would necessarily have a strong impact on these questions, Kennedy argues that they are essential to understanding and analyzing the racial politics of disparate impact. He questions: Whether, or for whom, such a disparity is harmful.... [I]s the black population hurt when traffickers in crack cocaine suffer longer prison sentences than those who deal in powdered cocaine or helped by incarcerating for longer periods those who use and sell a drug that has an especially devastating effect on African-American communities? Id. at 10.
153. Sanford H. Kadish, The Crisis of Overcriminalization, 374 ANNALS AM. ACAD. POL. & SOC. SCI. 157, 169 (1967).
154. As the study for the Connecticut General Assembly points out, "We could not find any studies on the impact of these laws." REINHART, supra note 62, at 2.