Self-Defense and the Suspicion Heuristic
45 Pages Posted: 21 Oct 2012 Last revised: 4 Jan 2013
Date Written: October 1, 2012
The doctrine of self-defense evaluates the reasonableness of criminality judgments. Yet, it fails to account for how non-conscious cognitions place those who are stereotyped as criminal at greater risk of mistaken judgments of criminality — sometimes with deadly consequences. Studies reveal, for example, that people are more likely to see weapons in the hands of unarmed black men than unarmed white men, and to more quickly shoot them as a result. Because self-defense doctrine does not attend to these judgment errors, it fails to interrogate how, if at all, these mistakes should affect assessments of reasonableness. Drawing from powerful and well-established mind sciences research, this Essay introduces a concept that we term the “suspicion heuristic.” This concept explains how non-conscious processes can lead to systematic and predictable errors in judgments of criminality — and influence subsequent behaviors — regardless of conscious racial attitudes. This Essay argues that in order to provide more equal protection, security, and liberty to all victims of violence, the law of self-defense should account for the suspicion heuristic in its assessments of reasonableness. This Essay traces the broad outlines of a theoretical and legal framework for doing so.
Keywords: Self-Defense, Duty to Retreat, Stand Your Ground laws, Implicit Racial Bias, Implicit Social Cognition, Heuristics and Biases
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