Race and Self-Defense: Toward a Normative Conception of Reasonableness

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