Interracial Violence and Racialized Narratives Discovering the Road Less Traveled

Posted: 27 Aug 2008  

Date Written: August 24, 2008

Abstract

Anthony Alfieri's recent essay, "Defending Racial Violence," analyzes various models of legal argumentation and strategy. The essay focuses on the trial of two black men charged with attacking a white trucker during the Los Angeles uprising sparked by the acquittal of four white police officers who brutalized Rodney King. After examining what he calls the rhetorical structure of defense arguments in the case, Alfieri reaches some interesting conclusions, which he would apparently generalize to all cases of black-on-white violence. Alfieri asserts that race-based narratives of deviance - stories of ghettoized deprivation, neglect, and resulting pathologies - are used by criminal defense attorneys to hone arguments that mar their individual clients' legal identities and distort the integrity of the entire black community. According to his analysis, when defense attorneys present narratives of "black deviance" they depict the collective black community as virtually incapable of exercising morally responsible choices. Alfieri, though, seems far less concerned with group libel than with what he characterizes as depersonalization of "individual responsibility for violent behavior." The essay, which does not offer any version of a tentative Model Rule of Professional Responsibility, proposes as a matter of ethical responsibility that lawyers be constrained in one of two ways. Alfieri argues that lawyers should either be precluded from utilizing narratives of "black deviance," or be held "responsible" for the absence of lawyer-client consultations concerning defense strategies and perceptions related to individual moral character and community integrity. Besides the inherent difficulty of reaching a consensus on all the dynamics that affect high-profile cases, which - in the United States - include interracial crimes of violence, Alfieri's proposal to ban "black deviance" narratives is unworkable for many different reasons. First and foremost, the proposal remains disconnected from any concrete goal or objective that a rule making body could effectively monitor or control, assuming it possessed the requisite authority. Second, the case study method is ineffective for advancing Alfieri's claim. If his argument is that black men who commit violent crimes against innocent whites are "getting away with it" or that defense lawyers in such cases routinely argue that these defendants are mostly blameless (under a "black deviance" theory), he has failed to make his case. If, instead, he simply believes that it is morally wrong for attorneys to intentionally and recklessly depict black America as "lacking in the properties of mind and character necessary for moral agency" under any circumstances, then he should seriously examine the conduct of a representative sample of criminal defense attorneys to determine if such a problem actually exists. Instead, Alfieri merely points to a series of neutral arguments orchestrated by defense attorneys in a single case - arguments which he urges his readers to construe as suggesting race-based deviance. Relying heavily upon his knowledge of the defendants' and victim's races, Alfieri never substantiates his claim that the lawyers' presentation of the "group contagion" diminished capacity defense uniquely implicates only black community character and behavior, in Los Angeles or elsewhere. Yet, Alfieri justifies his proposal by arguing that use of the "mob-violence incited" defense in this trial suggests that "young black males as a group, and the black community as a whole, share a pathological tendency to commit acts of violence." The principal flaw of Alfieri's essay is that in all but one of the passages that he presents as a form of "race-talk," defense lawyers easily could have been describing a white community, and two white defendants who grew up in a predominantly white environment. Prior to issuing a blanket prohibition, Alfieri should have determined whether legal narratives of "black deviance" are a significant source of harm to the social identities or integrity of African Americans.

Keywords: deviance, moral responsibility

Suggested Citation

Barnes, Robin, Interracial Violence and Racialized Narratives Discovering the Road Less Traveled (August 24, 2008). Columbia Law Review, Vol. 96, No. 786, 1996. Available at SSRN: https://ssrn.com/abstract=1252722
No contact information is available for Robin Barnes

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