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Abstract:
It is undisputed that Blacks are disproportionately represented among the victims of police shootings. In a comprehensive review of the literature on police use of deadly force, James Fyfe reports that every study that has examined this issue [has] found that blacks are represented disproportionately among those at the wrong end of police guns. Although Blacks represent approximately 13 percent of the population in the United States, in parts of the country they constitute 60 to 85 percent of the victims of police shootings. On average, Blacks are more than six times as likely as Whites to be shot by police, and in large cities are killed by police at least three times more often than Whites. Latinos (or Hispanics) are about twice as likely as Whites, but only half as likely as Blacks, to be shot and killed by police. There is a noticeable lack of data regarding police use of force against other non-Black minorities, such as Asian Americans, Arab Americans, South Asians and Native Americans. However, reports by Amnesty International and Human Rights Watch suggest that, in relation to their representation in society at large, these other minorities are also disproportionately on the receiving end of police force.

While widespread consensus exists that racial minorities are disproportionately represented as victims of police shootings, the reason for this disproportion is hotly disputed. Most people who have an opinion on the subject fall within one of two camps which John Goldkamp, in his study of race and police shootings, calls Belief Perspective I and Belief Perspective II. Proponents of Belief Perspective I believe racism on the part of police officers and police departments results in one trigger finger for racial minorities and another for Whites. According to this view, police officers intentionally single out racial minorities for harsher treatment. Proponents of Belief Perspective II, in contrast, contend that race does not influence the average police officer's decision to use force. According to this perspective, Blacks and other non-Whites are disproportionately represented as victims of police shootings because they disproportionately commit armed robberies, carry firearms, and engage in behavior that police officers are likely to find threatening, such as resisting arrest.

The problem with Goldkamp's two belief perspectives theory is that it frames the problem in all-or-nothing terms. Either police officers are bigots who intentionally target racial minorities (Belief Perspective I) or they are completely unbiased and color-blind (Belief Perspective II). The truth more likely lies somewhere between these two extremes.

In this essay, I offer a third way to explain the disparate treatment respective segments of the population experience at the hands of police officers - an explanation that accommodates both the lived experiences of persons of color and the belief that police officers use force more often against persons of color because such individuals appear to be more threatening to the officer. Borrowing from Charles Lawrence's theory of unconscious racism, I suggest that racial stereotypes operate at a subconscious level to influence the police officer's decision to use deadly force. The police officer may not consciously decide to use deadly force because of the suspect's race, but the suspect's race nonetheless influences the officer. Racial stereotypes thus may alter the officer's perception of danger, threat, and resistance to authority. A simple question, Officer, why am I being stopped? may be perceived as behavior challenging the officer's authority when asked by someone who is Black. Police officers may also see danger more readily when dealing with a person of color. Just as racial and ethnic stereotypes influence private citizens' decisions to use force in self-defense, such stereotypes can also influence police officers' decisions to use force.

I review recent social science studies which provide support for my theory and provide examples of how racial stereotypes can affect perception through actual cases. Finally, I suggest a race-switching jury instruction as a means to help de-bias juror decision making.

race, police, racial stereotypes, prejudice, stereotypes, deadly force, bias, unconscious racism, Amadou Diallo, Timothy Thomas, Tyisha Miller

Abstract:
Much has been written about the so-called cultural defense or, more accurately, the proffer of cultural evidence by a criminal defendant seeking to mitigate a charge or sentence. Many scholars support the admission of cultural evidence, but argue it should be limited to cases where such evidence is used to negate the mens rea element of the charged offense. Others feel that the admission of cultural evidence violates the principle of equal protection and favors immigrant and minority defendants over American defendants, and therefore the practice should be sharply circumscribed. Recently, a few legal scholars have issued calls for recognition of an official cultural defense.

In Cultural Convergence, Professor Lee neither defends nor criticizes the practice of using culture in the criminal courtroom. Rather, she seeks to illuminate why some uses of culture in the criminal courtroom seem to be more successful than others. Generally speaking, immigrants and minority defendants who seek to proffer cultural evidence in their defense are not successful. Either the judge deems the evidence irrelevant or the jury is not persuaded that the defendant's cultural background should be grounds for leniency. An extensive review of the cultural defense literature, however, suggests that immigrant and minority defendants who successfully introduce cultural evidence in their defense have one thing in common. The cultural norms underlying their claims are either similar to or complement American cultural norms, including retrograde, e.g., racist and sexist, norms. Borrowing from Derrick Bell's interest convergence theory, Lee argues that cultural convergence is one way to explain these results. Cultural convergence is the idea that the cultural defense claims of minority and immigrant defendants are more likely to receive accommodation when there is convergence between the cultural norms relied upon by the immigrant or minority defendant and American cultural norms.

This article proceeds in three parts. Part I provides the reader with an overview of the major legal issues surrounding the use of cultural evidence in the criminal courtroom. Part II provides a comprehensive taxonomy of the ways Derrick Bell's interest convergence theory has been applied by legal scholars. Part III demonstrates how Lee's theory of cultural convergence can help explain many of the successful uses of culture in the criminal courtroom.

cultural defense, interest convergence, cultural convergence, Hmong marriage by capture, black rage, oyako shinju, cultural racism, racialization, stereotypes

Abstract:
In this article, I examine the use of gay panic defense strategies in the criminal courtroom. I argue that such strategies are problematic because they reinforce and promote negative stereotypes about gay men as sexual deviants and sexual predators. Gay panic defense strategies are also troubling because they seek to capitalize on unconscious bias in favor of heterosexuality which is prevalent in today's heterocentric society. Most critics of the gay panic defense have proposed that judges or legislatures should bar gay panic arguments from the criminal courtroom. I take a contrary position and argue that banning gay panic arguments from the criminal courtroom is a bad idea. When gay panic arguments are forced to take a covert turn - when they are not explicit or out in the open - they may actually be more effective. Recent social science research on race and implicit bias suggests that making race salient can diminish the otherwise automatic effect of stereotypes on perception and belief. Conversely, pretending that race is irrelevant and not making it salient allows unconscious racism to operate without any constraints. The same is likely true of other types of bias, including sexual orientation bias. Rather than precluding defendants from making gay panic arguments, I argue that the criminal courtroom is the place where such arguments can and should be aired and battled.

The article proceeds in three parts. In Part I, I review the historical origins of the concept of gay panic. In Part II, I examine the doctrinal underpinnings of gay panic defense strategies and theorize about why gay panic arguments are successful. Defendants have linked claims of gay panic to criminal law defenses based on mental deficiency, such as temporary insanity or diminished capacity. More recently, gay panic has been used to bolster claims of provocation and self-defense. I also examine the trans-panic defense, a fairly recent modification of the gay panic defense under which a male murder defendant charged with murdering a transgender individual claims that he panicked upon learning that his sexual partner was biologically male, not female.

In Part III, I strike a different path from that chosen by other critics of the gay panic defense. Other critics have proposed essentially the same remedy: barring defendants from arguing gay panic. In contrast, I argue that judges should as a general rule allow such arguments as long as some evidence supports the traditional criminal law defense that the defendant is asserting through the gay panic lens. This is the same standard governing when a trial court must allow a proffered defense used in numerous jurisdictions. To bolster this possibly unpopular position, I start with a micro-argument: attempts to ban gay panic from the criminal courtroom won't work because gay panic arguments can be made sub rosa. I then turn to what might be called macro arguments to support my theory that banning gay panic defense strategies from the criminal courtroom is a bad idea. Three broader frameworks support my position: (1) First Amendment theory; (2) recent social science research on implicit bias; and (3) institutional competency arguments.

gay panic, gay panic defense, defense strategies, homosexuality, trans-panic defense

Abstract:
In this short essay, I respond to two questions raised by Victoria Nourse in her recent review of my book Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom (NYU Press 2003). Murder and the Reasonable Man examines ways in which race, gender, and sexual orientation norms can influence the reasonableness requirement in provocation and self-defense cases. Nourse asks: (1) In light of my critique of the Reasonable Man standard, why not simply eliminate the reasonableness requirement in the doctrines of provocation and self-defense?, and (2) Why not ask legislatures to carve out categories of things that cannot constitute legally adequate provocation, such as a female partner's infidelity and a non-violent homosexual advance? I respond to Nourse's first question by arguing that in spite of its problems, the reasonableness requirement in both provocation and self-defense law serves a useful function, ensuring that a completely irrational actor cannot get away with murder simply by claiming he was actually provoked into a heat of passion or honestly believed he needed to us deadly force to protect against an imminent threat of death or serious bodily injury. Requiring the jury to find that a reasonable person in the defendant's shoes would have also been provoked or would have also feared an imminent deadly attack provides an objective check on the defendant's subjective passions and fears. While this objective check may be influenced by the jury's personal biases, it is better than no check at all. In response to Nourse's second question, I argue that juries are better institutional actors than legislators when it comes to deciding what is fair and just in an individual case. Additionally, the deck is stacked against most criminal defendants before they even enter the courtroom, and I do not favor stacking the deck any further by taking away from the defendant the opportunity to argue a particular defense. The solution to the problem of race, gender and heterosexual orientation bias lies in making salient the race, gender, and/or sexual orientation norms that make certain defendants' claims of reasonableness seem more reasonable than others.

Abstract:
In this Article, Professor Lee examines the government motion requirement for substantial assistance departures in light of Congress's goals for implementing the federal sentencing guidelines. In Part One, Lee discusses the government motion requirement against the backdrop of the goals Congress had in mind when it enacted the federal sentencing guidelines. She points out that while Congress enacted the sentencing guidelines to promote uniformity and proportionality (an "equality value") and honesty and certainty (a "reliance value") in sentencing, the government motion requirement gives prosecutors the unilateral authority to block downward departures for substantial assistance. This increase in prosecutorial sentencing discretion prompts Lee to question whether crucial decisions respecting punishment should be made behind closed doors in discussions not open to public or in the relatively open, public courtroom. Part Two canvasses the unsuccessful legislative and judicial attempts to eliminate the government motion requirement. In Part Three, Lee explains that reluctance to eliminate the government motion requirement stems in large part from the misguided assumption that the government motion requirement is merely an extension of a prosecutor's charging and plea bargaining discretion. Professor Lee shows how these views are misguided by juxtaposing the significant steps taken to restrict prosecutorial discretion in charging and bargaining with the unchecked prosecutorial discretion over the government motion requirement.

Finally, in Part IV, Lee proposes more restrictions and guidance on both prosecutorial and judicial discretion regarding substantial assistance departures. Lee recommends elimination of the government motion requirement, and argues that judges should make the ultimate determination whether a defendant deserves leniency for cooperation. However, this judicial discretion should be limited to prevent judges from using substantial assistance as a backdoor means of regaining the unfettered sentencing discretion they held before the sentencing guidelines. Lee contends that these steps would better accommodate Congress's goals and ensure that substantial assistance departures are fairly and reliably granted.

prosecutorial discretion, substantial assistance departures,Federal Sentencing Guideline, federal sentencing guidelines, downward departures, substantial assistance, cooperation, 5K1.1, judicial discretion, prosecutorial discretion, government motion

Abstract:
In the twenty years since the Pickering test, the U.S. Supreme Court has done little to clarify what types of public employee speech constitute speech "of public concern" for the purpose of receiving constitutional protection. In this Comment, Cynthia Lee offers a reformulation of the Pickering test by focusing on three factors courts should examine when determining whether an employee who engages in disruptive speech should receive constitutional protection. Part One of this Comment traces the historical background of public employee free speech rights. Part Two examines the employee's initial hurdle of showing that his or her speech was of public concern, and exposes the Supreme Court's disproportionate concern for the government employer's interest in managing the workplace. Part Three explains how courts decide public employee speech cases. In Part Four, Lee presents a reformulation of the Pickering test. Lee argues first that the public concern inquiry should shift the burden from the employee to the employer, and, as a threshold matter, require the employer to prove that the employee's speech clearly impaired the ability of the government institution to function. If the employee's speech passes this threshold test, courts then should examine the following three factors to determine whether the employee spoke as an employee or as a citizen: (1) whether the speech took place within the office or outside in the public realm; (2) whether the speech was related to the employment; and (3) whether the speech was of public concern. Lee argues that if one of these factors support a finding that the employee spoke as a citizen, courts should independently review the case instead of deferring to the government employer.

free speech, public employee speech, workplace speech, public concern

Abstract:
This chapter, which will be part of a 5 volume treatise entitled, Hate Crimes: Perspectives and Approaches (Barbara Perry ed. forthcoming 2009), situates the private acts of hate violence committed against Arab-Americans, Muslim-Americans, Sikh-Americans, and South Asian-Americans in the aftermath of 9/11 into the broader context of the war on terror. In Part I, after providing some general background information on hate crimes, I discuss some of the hate crimes committed in the aftermath of 9/11. In Part II, I examine two common stereotypes about Arabs and Muslims which likely contributed to the post 9/11 backlash against Arabs and Muslims and those perceived to be Arab or Muslim: the Arab-as-Terrorist stereotype and the Arab-as-Foreigner stereotype. In Part III, I suggest that government action in the war on terror was influenced by and reinforced these stereotypes. I conclude by discussing broader possible implications of the Arab-as-Terrorist stereotype.

hate crimes, terrorism, Arab, Muslim, stereotype

Abstract:
This article examines the effect of the race of the victim on legal decision making in capital and non-capital criminal cases. A large body of research on race and capital sentencing indicates that the crime victim's race affects the prosecutor's decision to seek, and the jury's decision to recommend, the death penalty. The most well known of these is undoubtedly the Baldus study, which provided the data underlying the defendant's challenge to the Georgia death penalty regime in McCleskey v. Kemp. Less well known are empirical analyses conducted since the Supreme Court rejected McCleskey's challenge. The article reviews several of these studies, virtually all of which find the victim's race continues to matter to death penalty sentencing. The author also reviews the results of experiments on jury decisionmaking in non-capital cases, which reach conflicting results on the significance of juror-victim racial similarity and guilt attribution. Although an experimental design allows researchers to hold constant every variable other than race, the juries in these experiments often differ significantly from real world juries, thereby limiting the confidence one may have in the applicability of those results outside the laboratory. The article concludes by noting where additional study would be useful.

capital sentencing, death penalty, guilt attribution, race and the victim, race and the jury, racial disparity, juror-victim racial similarity

Abstract:
This article critiques traditional formulations of the defense of self-defense which focus upon the reasonableness of the defendant's beliefs, without requiring a separate inquiry into the reasonableness of the defendant's conduct. The article also critiques formulations of the defense which require the defendant to be correct about the existence of justifying circumstances. Rather than focus exclusively upon the defendant's beliefs or exclusively upon the defendant's conduct, this article proposes a dual requirement for perfect self-defense. Not only must the defendant's beliefs be reasonable, but the defendant's conduct must also be reasonable. The article also proposes a new form of imperfect self-defense. If the defendant's beliefs are reasonable but his conduct unreasonable, then the defendant may be acquitted of the charged offense and liable for a lesser offense. The article also explores the meaning of reasonableness in self-defense doctrine, and suggests that the current bi-polar (objective-subjective) conception of reasonableness be replaced with a conception of reasonableness that recognizes different gradations of objectivity.

Abstract:
Prior to the Federal Sentencing Guidelines, criminal sentences were rarely appealed. For the first two years after implementation of the Guidelines, most appellate courts applied a tripartite standard of review when reviewing Guideline departures. Under this framework, courts reviewed the existence of an aggravating or mitigating factor de novo, the district court's actual findings for 'clear error,' and the reasonableness of the extent of the departure for 'clear error.' In Koon v. United States, the U.S. Supreme Court purportedly rejected this tripartite standard of review, and instead proclaimed a unitary 'abuse of discretion' standard.

On the tenth anniversary of the Guidelines, legal scholars continue to vigorously debate whether Koon restored or further reduced the district court judges' sentencing discretion. Professor Lee presents both sides of this debate by analyzing and critiquing Koon, and ultimately proposes more simplified language to distinguish between the different standards of review. She starts by providing a historical overview of sentencing in the federal courts. She then discusses general principles of appellate review, providing a primer on standard of review jurisprudence for findings of facts, questions of law, mixed questions and discretionary decisions. Next, Professor Lee examines the Supreme Court's jurisprudence on appellate review of sentencing decisions under the Guidelines. Professor Lee proposes a reformulation of the Koon standard to reflect a sliding scale of deference approach which specifies varying degrees of deferential review for the different aspects of the departure decision. Lee applies this framework to Judge Davies' decision to depart in the Koon case, and demonstrates how her reformulation provides better guidance to future appellate courts.

federal Sentencing guidelines, standard of review, appellate review, sentencing departures

Abstract:
In this article, Cynthia Lee examines the tension between judicial discretion and the sentencing guidelines established by the Sentencing Reform Act of 1984. Lee argues that a sentencing court should not require a government motion before departing downward in recognition of a defendant's substantial assistance in the investigation or prosecution of another person. In Part One, Lee provides the historical background leading to the creation of the sentencing guidelines, which were enacted to curb the sentencing disparity resulting from broad judicial discretion. In Part Two, she summarizes the district and appellate court interpretations of 18 U.S.C. Subsection 3553(e) and Subsection 5K1.1 of the guidelines. While appellate courts generally have not allowed downward departures without a government motion, some district courts have either (1) treated letters regarding the defendant's cooperation from the government to the court as the functional equivalent of a government motion; or (2) imposed a duty to act in good faith on the government in providing a detailed statement of any assistance actually rendered by the defendant. In Part Three, Lee recommends elimination of the government motion requirement. The government motion requirement gives the prosecutor - who is not an unbiased player in the sentencing process - enormous discretion to determine the defendant's sentencing. Professor Lee argues that this discretion should rest with the judge, and that the sentencing court should weigh the government's assessment of the defendant's assistance against the evidence presented by the defendant.

federal sentencing guidelines, substantial assistance, cooperation, 5K1.1, downward departures, government motion, judicial discretion, prosecutorial discretion

Abstract:
This paper examines the influence of racial stereotypes on juror determinations of reasonableness in self defense cases involving African American, Asian American, and Latino victims as part of a larger effort to minimize racial bias in criminal justice decision-making. Part I discusses traditional self defense doctrine, including the debate over whether an objective or subjective standard of reasonableness should be employed. Recognizing that objective standards such as the reasonableness requirement are not always neutral, Part I nevertheless concludes that an objective standard of reasonableness is preferable to a subjective standard which permits the racially biased sentiments of the defendant to control the outcome of the self defense inquiry. Part II examines how socially constructed stereotypes about African Americans, Asian Americans and Latinos might influence jurors in self defense and other cases. First, this part discusses social science research and cases exemplifying the Black-as-criminal stereotype. Second, this part discusses stereotypes about Asian Americans, including the Asian-as-model minority, Asian-as-foreigner, and Asian-as-martial artist stereotypes. Finally, this part discusses stereotypes about Latinos, such as the Latino-as-illegal immigrant, Latino-as-drug abuser, the Latino as hot-headed and prone-to-violence macho male, and other stereotypes. Part III explores ways in which the risk of racial stereotypes influencing the reasonableness determination in self defense cases might be reduced. Professor Lee proposes that judges give jurors in racially charged self-defense cases a “race-switching” jury instruction to help reduce the influence of racial stereotypes. Such an instruction would ask jurors to engage in a simple mental exercise - switching the races of the defendant and the victim. If jurors come to a different conclusion as to the reasonableness of the defendant’s actions when the races are switched than when the races are not switched, this would suggest racial bias. Lee also suggests that a clear distinction be drawn between act-reasonableness and emotion-reasonableness. Drawing such a distinction would be aimed at discouraging jurors from assuming that if a defendant’s fear of imminent death or serious bodily injury was reasonable, his homicidal act was also reasonable.

Abstract:
This book examines the influence of masculinity, heterosexuality, and race norms on the reasonableness requirement in two criminal law defenses: the doctrine of provocation and the defense of self-defense. I argue that certain defendants are better able than others to bolster their claims of reasonableness by relying on dominant social norms and illustrate this point by examining three types of cases: (1) female infidelity killings, (2) gay panic killings, and (3) racialized self-defense cases (both private claims of self-defense and police use of deadly force against persons of color). Even though these three types of cases may seem completely unconnected at first glance, they are linked by the defendant's reliance on social norms to bolster his (or her) claim of reasonableness.

I offer three proposals for reform. My first proposal is theoretical - rather than relying on a positivist conception of reasonableness (or one that focuses on what the average or typical person would have believed or done), I suggest we ought to also utilize a normative conception of reasonableness (or one that focuses on what actions ought to be considered reasonable). To implement this normative conception of reasonableness, I offer a practical reform: a race-switching (or gender-switching or sexual orientation-switching) jury instruction. Upon a motion by the prosecutor or defense attorney or if the judge sua sponte thinks it appropriate, the judge would instruct jurors that they may switch the races (or genders or sexual orientation) of the defendant and victim and determine whether they would come to a different result after switching. If so, then jurors may wish to reconsider the case with the knowledge that they may have been relying upon racial stereotypes (or masculinity or heterosexuality norms) the first time around. Finally, I offer a doctrinal reform that raises the bar for all defendants claiming provocation or self-defense which is really just a clarification of existing law in the case of self-defense. In contrast to the current focus on reasonableness of beliefs and emotions, this reform (which I call the Act-Belief Distinction) would require the jury to find that both the defendant's beliefs (or emotions) and his or her acts were reasonable.