'A Spectacle of Slavery Unwilling to Die': Curbing Reliance on Racial Stereotyping in Self-Defense Cases

UC Irvine Law Review Vol. 5, No. 873

62 Pages Posted: 30 Dec 2015

See all articles by Jonathan Markovitz

Jonathan Markovitz

American Civil Liberties Union, San Diego and Imperial Counties

Date Written: December 27, 2015

Abstract

Defendants claiming self-defense admit to having committed an act of violence, but seek sanction for having done so. They are, in effect, asking the legal system to mark their actions as socially acceptable, if not actually desirable. Self-defense inquiries often turn on the question of whether a defendant reasonably believed he or she was faced with a genuine threat. Because fears of violent crime are so deeply entwined with “commonsense” understandings of race and gender in American society, there is a danger that determinations of what counts as “reasonable” fear may be driven by reliance upon racist stereotypes. This danger is particularly pronounced in self-defense cases involving violence against members of racialized groups that have been frequently portrayed as violent criminals within popular culture and the mass media.

When legal decision-making is reliant upon racist stereotypes, the legal system lends those stereotypes its imprimatur and imbues them with the force of law. When this happens in the self-defense context, legal determinations can legitimate forms of racial violence. It may be possible to guard against this outcome by crafting new self-defense standards based upon the Thirteenth Amendment’s prohibition against government endorsement of “badges of slavery.”

Keywords: Race, self defense, Trayvon Martin, Thirteenth Amendment, Bernhard Goetz, John White, Reasonableness, Implicit Bias, Spectacles, Jury Instructions

Suggested Citation

Markovitz, Jonathan, 'A Spectacle of Slavery Unwilling to Die': Curbing Reliance on Racial Stereotyping in Self-Defense Cases (December 27, 2015). UC Irvine Law Review Vol. 5, No. 873. Available at SSRN: https://ssrn.com/abstract=2708700

Jonathan Markovitz (Contact Author)

American Civil Liberties Union, San Diego and Imperial Counties ( email )

San Diego, CA
United States

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