Excerpted From: Suzy J. Park, Racialized Self-defense: Effects of Race Salience on Perceptions of Fear and Reasonableness, 55 Columbia Journal of Law and Social Problems 541 (Summer, 2022) (168 Footnotes) (Full Document)


00NoPictureOn an early Saturday afternoon in December 1984, four young Black men--Troy Canty, Darryl Cabey, James Ramseur, and Barry Allen--boarded a subway train in the Bronx. Two of the four, Ramseur and Cabey, had screwdrivers inside their coats, which they later said were for breaking into the coin boxes of video game machines. When the train arrived at the 14th Street Station in Manhattan, Bernhard Goetz, a thirty-seven-year-old White man, boarded. Goetz carried an unlicensed .38 caliber pistol loaded with five rounds of ammunition concealed in a waistband holster.

Shortly after the train began moving, the four teenagers approached Goetz. Canty said to Goetz, “Give me five dollars.” Goetz asked Canty, “What did you say?” Canty responded, “Give me your money.” At that point, Goetz stood up, drew his gun from his belt holster worn inside the front of his trousers under his jacket, and began shooting at the teenagers. Goetz wounded all four of the teenagers. One of the teenagers, Cabey, suffered brain damage and paralysis.

At Goetz's criminal trial, the prosecution, defense, and judge never explicitly discussed race or the potential role it played in the incident. Barry Slotnick, Goetz's attorney, however, made extensive use of subtle racial imagery throughout the proceedings. He “regularly portrayed Goetz's victims in animalistic terms, referring to them as 'vultures' and 'predators,’ while suggesting that Goetz had acted in defense not only of self, but also of civilization, taking aim not at a group of teenagers, but at the 'savages' whose potential for violence needed no explanation.” Imagery of Black people as savages and brutes exemplifies the racial ideology that has been used to justify violence against Black people since the post-Reconstruction era. Ultimately, the jury acquitted Goetz on the four charges of attempted murder. Jonathan Markovitz--a staff attorney at the American Civil Liberties Union and a former lecturer in Sociology at the University of California, San Diego--hypothesized that, ironically, the absence of open discussion of race in the courtroom may have facilitated the verdict:

[I]t is possible that jurors who may have recoiled at explicit verbal invocations of racist stereotypes were instead quietly swayed by more covert and unacknowledged reliance upon the same types of racist imagery that were ubiquitous outside the courtroom walls, in popular culture and even within daily news coverage of the trial.

While overt racism is becoming less acceptable in the courtroom, the practice of evoking animal images or dehumanizing qualities when referring to Black men continues. For instance, in People v. Duncan, the prosecution compared a Black defendant's “modest behavior” in court as being like a Bengal tiger in captivity in a zoo, and warned of the defendant's potential for “violent conduct under other less structured and controlled circumstances,” much like the dangerousness of the tiger in its natural habitat. In Duncan, the California Supreme Court summarily rejected the defendant's argument that this analogy was “a thinly veiled racist allusion” constituting prosecutorial misconduct. Rather, the court held that “[l]ikening a vicious murderer to a wild animal does not invoke racial overtones,” noting that “the circumstances of the murder might have justified even more opprobrious epithets.” Similarly, in a Black inmate's challenge of a state prosecutor's use of “big ape” and “gorilla” analogies, the Seventh Circuit held that “the error was slight and could not have affected the overall fairness of the trial and did not attain constitutional proportions.” The court concluded that the remarks were not “so inflammatory that [the defendant] was denied due process of law under the [F]ifth [A]mendment and the right to a trial by an impartial jury under the [S]ixth [A]mendment.”

Notwithstanding many courts' refusal to find animalistic language sufficiently prejudicial, implicit bias research shows that the cue of “Black-ape association influences the extent to which people condone and justify violence against Black suspects,” and that “the more individuals unconsciously associated [B]lacks with apes, the less innocent they thought [B]lack children suspected of a crime were.”

To assess the precise harm of implicit appeals to race in the criminal legal context, the author of this Note conducted a controlled experiment. The experiment presented participants with the facts of Goetz, exposed them to explicit, implicit, or no linguistic appeals to race, and measured participants' perceptions of reasonableness of violence against Black and White victims. This study focused on Black-White racial dynamics because of the especially pronounced racial disparity in the American criminal justice system between Black and White Americans.

This study investigated two hypotheses. The first hypothesis predicted that among participants who read about Black victims, implicit appeals to race would more effectively activate participants' racial attitudes than explicit appeals to race. These racial attitudes, then, would shape participants' opinions as to whether the defendant reasonably believed that he was at risk of bodily harm when he shot the victims. This hypothesis is grounded in the aversive racism theory. Participants who are exposed to explicit references to race will become aware that race is a relevant issue in the case and be motivated to suppress their own racial views in order to avoid a conflict between their determination of reasonableness and their explicit egalitarian views. By contrast, participants exposed to implicit references to race will fail to consciously recognize the racial cues and will allow their determination of reasonableness to mirror their implicit biases. The second hypothesis predicted that among participants who read about White victims, the experimental conditions will not affect the degree to which participants' racial attitudes shape the opinion that the defendant reasonably believed that he was at risk of bodily harm when he shot the victims. This is because for participants in the White victims condition, the case does not describe interracial violence. Hence, participants' racial biases will not be triggered by either implicit or explicit cues.

The experimental data show no statistically significant difference between explicit and implicit appeals to race in triggering individuals' racial biases regardless of the race of the victim. This is contrary to the first hypothesis but consistent with the second. Together, these findings suggest that race salience does not make individuals any more or less likely to act on their prejudices. This, in turn, hints that parties' appeals to race at trial, whether explicit or implicit, matter less than what happens before trial: juror selection.

The Note proceeds as follows. Part I provides an overview of the relevant legal and empirical literature, and Part II describes this study's experimental methodology, including the sample, procedure, and materials. Part III then presents the results, and Part IV discusses the research outcomes' implications for how to patrol for racial bias in the courtroom, as well as limitations of the experiment.

[. . .]

Through a controlled experiment, this Note tested the hypothesis that implicit appeals to race, such as subtle racial imagery, evoke individuals' racial biases more powerfully compared to explicit references to racial stereotypes. Although the use of racial imagery in criminal cases has been a topic of discussion in legal academia, this Note is the first to take an experimental look at the distinction between implicit and explicit appeals to race in the courtroom. The data suggest that, contrary to the hypothesis and contrary to the predictions of aversive racism theory, race salience does not make individuals any more or less likely to act on their prejudices. This, in turn, suggests that parties' appeals to race at trial, whether explicit or implicit, matters less than what happens before trial: juror selection. Since the data indicate that it is difficult to make people “turn off” their prejudices through the use of race consciousness, it is important to choose jurors who are internally and genuinely motivated to be unprejudiced. In order to better understand the effects of racial appeals on jurors, victims, and defendants of color, future studies should seek to recruit a more diverse sample and to investigate racial dynamics beyond Black-White relations explored in this Note.

J.D. 2022, Columbia Law School; B.A. 2018, Cornell University.