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Camille A. Nelson

Permission Requested:   Camille A. Nelson, Breaking the Camel's Back: A  Consideration of Mitigatory Criminal Defenses and Racism-related Mental Illness, 9 Michigan Journal of Race and Law 77-147 (Fall 2003) (314 Footnotes)

 

The following passage is from what the United States Court of Appeals for the Seventh Circuit deemed an X-rated decision. It is taken verbatim from one of a series of letters sent to a Black family in Illinois:

       You filthy fag sick garbage puke slime vomit mutt sooner mother fucker. . . . I wishes a vicious death upon your scum of the earth head. You watch your back you faggott bastard less you receive five bulletts in your spine. Your big black ugly maggott witch wife should be hung or burned at the stake like witches used to you Fat Fuck Motherfucker. If I weren't a child of God I'd catch you coming out of UPS and blow your head to dust particles. Nevertheless your wife is in store for a very dramatic/harmful incident. Before it is over that big black scorcerer will pay a debt to society like no other black bitch like her on earth.

      The above quote from United States v. Bohanon attests to the power of words. Coupling such language with conduct makes its import even greater. The intentional use of such words to injure marginalized persons has the potential to elicit a physiological response, generate emotions, and lead to responsive actions. This potential remains largely unrecognized by the American legal system. While in the United Kingdom, Australia, and Canada the courts or legislatures acknowledge the provocative power of words and symbols, American jurisprudence attempts a careful balancing between, on the one hand, the provocative capacity of words and symbols in the absence of conduct and, on the other hand, protecting the First Amendment right to free speech. Where relevant, the mental health effectsstemming from racist abuse and violence should form part of the deliberations in a criminal trial. The mitigatory defenses, in particular, have a role to play in allowing due consideration of the psychological impact of racism.

       In the lexicon of racial abuses, there are many words and phrases capable of inflicting physiological and mental injury. Even absent accompanying conduct, the use of some words can inflict deep wounds based on identity, be that identity based on race, gender, culture, religion, or sexuality. The excerpt from the X-rated decision outlined above is but one example of the violent and abusive words that many Americans are exposed to from an early age. The perpetrators who deal in this vitriol and its symbolism (such as racist graffiti or anti-Semitic imagery) are well aware of its powerful potential--they select and deploy the imagery with care to assure maximum damage to their victims.

      Hateful speech and racially violent symbolism, such as that in Bohanon, are symptoms of social processes. They are the legacy of a past of racialized nation-building. The First Amendment is designed to protect political speech of all types, yet speech that infringes on public order (such as bomb threats, incitements to riot, obscene phone calls, and “fighting words”) can be prohibited in the interest of the common good. Moreover, even absent a constitutional reclassification of hate speech and racially violent symbolism as fighting words, there is conceptual space in the criminal law to consider the impact-driven legal significance of such racial abuse. Examination of the defenses of provocation, extreme emotional disturbance, and diminished capacity might prove informative and provide an equitable point of departure when informed by the social sciences. Specifically, the elasticity of the reasonable person standard in the defense of provocation, the recognition of trauma in the extreme emotional disturbance defense, and the allowance for impairment in diminished capacity provide opportunities to consider the role of racism in criminal culpability determinations.

      While the abusive letter reproduced above undoubtedly engendered both physiological and mental effects on its intended victims, if the family members had responded with violence to such abuse, they would have been denied access to criminal law defenses. It is, however, possible to recognize such speech and symbolism as a form of racial violence that, like all forms of violence, inflicts both physical and mental damage upon its victims and might lead to responsive violence. It is this point--the prospect of responsive violence--from which this Article departs.

      This article will examine the concept of racist words, symbols, and actions that are used as weapons to “ambush, terrorize, wound, humiliate, and degrade,” as psychological and physiological violence. The implications of such violence are relevant to several affirmative defenses and, indeed, to the initial formulation of mens rea. The historical and contextual legacy that is intentionally invoked by the utilization of racialized violence is what separates the racial epithet or racially violent symbolism from other distressing insults and slurs. While First Amendment protection extends to offensive or insulting speech, the mental and physical sequelae of such speech, even absent conduct, are appropriate considerations for the criminal law, as such speech is racial violence itself and may lead to the responsive physical violence that is beyond the protection of the First Amendment.

      Words used as weapons to inflict maximum damage upon racially designated victims should be distinguished from violent speech in the abstract as such targeted utterances intentionally draw upon a history of racist terrorism. In the face of such violence, courts should respond in one of two ways: prohibition or regulation of such speech or, as this Article will argue, acknowledgement of the mitigatory potential of provocation, diminished capacity, and extreme emotional disturbance for victims of racialized violence. These defenses have been effectively used by jealous husbands, homophobes, and those claiming the sanctity of their cultural practices. Accordingly, there is no tenable basis to deny these defenses to persons of color who are provoked to respond to racialized violence. If a victim, such as the recipient of the above quoted letter, responds by self-help to the racialized violence inflicted upon her, legal recognition of the material impact of such racial terrorism, and the violence done to a victim so abused, is in order for purposes of mitigated sentencing.

      Part I of this Article explores the salience of “critical psychology,” focusing on the mental, and to a lesser extent the physiological, implications of exposure to racism. Part II explores the criminal law doctrines of extreme emotional disturbance, provocation, and diminished capacity as substantive areas capable of incorporating critical psychology. Part III analyzes the pros and cons of an infusion of the critical psychology into the criminal law for communities of color. This part focuses on the potential pathologization of Blacks as “mad” or “bad,” as well as considerations of intersectionality and multidimensionality.

I. Critical Psychology and Racism as Abuse

       “I had to meet the [W]hite man's eyes. An unfamiliar weight burdened me. In the [W]hite world the man of colour encounters difficulties in the development of his bodily scheme. . . . I was battered down by tom-toms, cannibalism, intellectual deficiency, fetishism, racial defects. . . . I took myself far off from my own presence. . . . What else could it be for me but an amputation, an excision, a hemorrhage that spattered my whole body with [B]lack blood?”

      The study of abuse and its consequences has preoccupied many mental health practitioners throughout the last century. The repercussions of abuse are not limited to the manifestations of physical battery. Rather, like the many forms of abuse, there are many consequences.

      The recognition of racism as abuse is consistent with traditional and contemporary definitions. Mental health practitioners have identified common consequences of exposure to mental and physical abuse, including psychological sequelae, which some believe are even more serious than the physical effects. In domestic violence cases, for instance, the abuse often erodes women's self-esteem and puts them at a greater risk for a variety of mental health problems, including depression, post-traumatic stress disorder, anxiety disorders, suicide, and alcohol and drug addiction. Such abuse has additional consequences for families. Children who witness marital violence face increased risk for emotional and behavioral problems including anxiety, depression, poor school performance, low self-esteem, disobedience, nightmares, and physical health complaints. Children exposed to abuse are also more likely to act aggressively.

      Critical psychology reveals widespread racial discrimination against Blacks. Studies have found that Blacks continue to be discriminated against in a variety of arenas, ranging from face-to-face interactions to discrimination in housing, health, and social services. Such discrimination is not limited to low-income or uneducated Blacks, but is also reported by Black middle-class professionals. Indeed, one analysis drawing on the National Study of Black Americans suggests that recent experiences with racial discrimination may be associated with “higher levels of chronic health problems, disability and psychological distress, and lower levels of happiness and life satisfaction.” Membership in the Black race has been described as entailing exposure to highly stressful experiences, triggered essentially by race.

      While education alone does not diminish the discrimination experienced by Blacks in America, Blacks are 1.6 times more likely than Whites to have completed less than twelve years of education. Education is positively related to well-being. A similar pattern is evident for income. The racial distribution by social class follows the pattern noted for education and income. Blacks are more likely than Whites to be workers (61 percent vs. 51 percent); equivalent percentages of Blacks and Whites are supervisors, but Whites are almost twice as likely as Blacks to be managers (24 percent vs. 13 percent). Blacks are more than twice as likely as Whites to report major experiences of discrimination in employment and police interactions. Levels of financial stress are significantly higher for Blacks than for Whites. Further, poverty and ethnicity have been found to be two of the most important consequential factors contributing to stress.

      Critical psychology has expanded models of stress to account for racially predicated social hierarchies and the mechanisms through which they contribute to differences in mental and physical health. Unlike traditional psychology, critical psychology makes the implicit explicit by acknowledging race-related mental health issues. Critical psychology explicitly recognizes that race, ethnicity, social class, community, family, and work environment are independent contributors to the chronic stress burden of a racialized person. This chronic stress burden, which has cumulative implications, includes both generic life stresses and ethnicity and race-related stresses. A racially disparate vicious circle is generated which contributes over time to cumulative vulnerability. This in turn creates disparate vulnerabilities to mental and physical disease and dysfunction.

      Mental health implications of racial abuse reveal several points of departure including stress, distress, the humiliation dynamic, anxiety, and depression, and coping. This Article will examine stress, distress, coping, and the humiliation dynamic as points of departure within the critical psychology for incorporation into mitigatory criminal law defenses.

A. Stress and Distress

      Stress has been defined as “environmental demands that tax or exceed the adaptive capacity of an organism, resulting in biological and psychological changes that may be detrimental and place the organism at risk for disease.” Essentially, stress is now recognized as harms, threats, and challenges, the quality and intensity of which depend on personal agendas, resources and vulnerabilities of the person, and environmental conditions. Stressful life events have been characterized as those situations that are tension producing and could adversely affect an individual's mental health, while distress is the state that occurs when the individual is unable to cope effectively with the stressor.

      These definitions exemplify a shift in psychological theory from a focus on environmental inputs and outputs to a relational assessment of stress and its impact. This shift in focus to the subject experiencing stress implies a knowing person who construes or appraises the significance of what is happening with regard to his or her well-being. This shift also requires an approach to stress measurement that takes into account the personal and environmental variables that influence the appraisal process.

      Over the past decade, critical psychologists have researched the well-established relationship between race and psychological distress. Specifically, critical psychology has revealed that race differences in psychological distress are particularly pronounced among people with low incomes. Blacks in America report lower levels of well-being than do Whites. Everyday discrimination and higher levels of stress are positively related to poorer health status.

      Critical psychological findings are consistent with sociological findings that social conditions are important determinants of variations in health. High levels of stress and low socio-economic status (“SES”) are two social factors that have been identified as pathogenic. Education and especially income, two of the three considerations for SES, are related to health outcomes and play a major role in explaining racial differences in health.

      The fact is, however, that poor income positioning, occupational status, and educational achievement disparately impact racialized persons. That is, SES is itself racially corrupted. This intersection of class and race is particularly important for the criminal law defenses discussed herein in light of the fact that race-related stress is more strongly related to indicators of mental health than to indicators of physical health. The research relating to social class, as an additional factor impacting stress is equally important to racialized people because of the “colored” face of American poverty. Accordingly, those most affected by the additive or interactive nature of race and poverty are the focus of this Article. In fact, critical psychologists have demonstrated that Blacks are more distressed than Whites even at low levels of income.

      Differences in physical health may be due, at least in part, to differential exposure to chronic and acute life stressors. Blacks, especially those from lower social classes, often report a greater number of negative life events and greater and more frequent exposure to “generic life stressors.”Blacks also tend to perceive these events as more stressful and report greater psychological distress from these stressful life experiences than their White counterparts. As such, Blacks are likely to be particularly vulnerable to the long-term effects of high allostatic load because of their relative socio-political position. Chronic or cumulative stressors may trigger physiological response mechanisms, predispositions, and wear and tear on the system. Chronic stressors due to financial strain, inadequate housing, crowding, and violence may all contribute to more frequent activation of stress-response systems and prolonged exposure to stress hormones.

      This compounding of race and class is consistent with critical race theorists' scholarship on intersectionality. For Blacks in America, the intersection of race and class produces an experience of oppression that is greater than the sum of its parts. Accordingly, it makes sense that critical psychology has demonstrated that poverty compounds and exacerbates the effects of racism and vice versa. When the interactive effects of race and class are taken into consideration, the data show that race has a substantial effect on psychological functioning among lower-class people, a result that is consistent with the view that racial discrimination exacerbates the health-damaging effects of poverty among Blacks.

      Irrespective of the type of analysis conducted, race discrimination has emerged as a powerful predictor of Blacks' psychiatric symptoms at all levels of socio-economic status. Indeed, in keeping with the findings of Cose, Feagin, and Sikes, critical psychologists Kessler and Neighbors have explained that:

       It is also possible that the joint effects of poverty and discrimination have synergistic effects or that financial success functions to shield blacks from the more distressing aspects of discrimination. Any of these processes would lead to an interaction in which the effects of race are most pronounced at the lower end of the social class distribution. Alternatively, race differences in distress could be most pronounced at high levels of social class, because financially successful Black-group members might experience the psychological stresses associated with this marginal position. Inferential evidence consistent with this possibility was reported in a treatment study . . . .

      In stepwise regressions, racist discrimination was the best predictor of half of the symptoms measured, including somatization, anxiety, obsessive compulsiveness, interpersonal sensitivity, and depression. Racial discrimination was a more powerful predictor of those symptoms than generic stressors such as social status. In hierarchical regressions, racist discrimination was more significantly correlated to these symptoms than were contextual factors such as age, gender, education, social class, and generic stressors. Despite the enormous variability in the social class levels of Blacks researched (for example, some were high school dropouts on welfare, others had law degrees and six-figure incomes), findings indicate that racism may play a role that is as large as, or larger than, social class.

      Social class marginalization exacerbates stress due to the compounding effects of racism. As Krieger has stated, “race conditions social class such that exposure to generic life stressors are not greater among the lower classes, but at equivalent levels of Socio-Economic Status, racialized persons experience higher stress burdens and poorer health outcomes.” This relationship between race and SES can have direct disparate effects on health in the form of additional stress burden and higher allostatic load, as well as indirect effects in the form of structural barriers to health care and other social resources. While blatant acts of racism and discrimination might be less commonplace today, more common insidious and aversive forms of racism have evolved. As Calmore points out:

       During the 1980s and 1990s, it appears that American racism had become known throughout the world as “state of the art.” Its picaresque genius lay in developing so brilliantly the conception that it had disappeared except as it was “imagined” by its subordinated subjects, who continued to “suffer” in an unbelievable world--a color blind world of white innocence. Race neutrality, or “racism in drag” (to quote Pat Williams) had displaced race consciousness.

      What are known as micro-aggressions in the critical race theory literature, or the battery of hyper-visibility or ascribed otherness, might now represent the preferred manner of discrimination and racial abuse of persons of color. The cumulative impact of micro-aggressions, those daily interferences and assaults on one's bodily and mental integrity based upon race, has the potential to be the straw that breaks the camel's back due to the relentless nature of the racialized bombardment and the difficulty of attributing racial animus, that hostility which is thought to indicate intention. Significantly, macro-aggression continues to exist in the form of structural constraints and barriers to access and control over essential resources, resulting in continued residential segregation, disparate educational access, and limited access to quality health care.

      Racism has substantial pathogenic, psychological, and physical effects. Moreover, a strong relationship exists between mental health, physical health, and well-being--the connection might be even more pronounced for Blacks in America given the evidence of disparate physical health for minority populations. Current evidence indicates that while the general health for residents of the United States has improved significantly in the past decade, this improvement has not been uniform. Whites enjoy a significant health advantage over racial and ethnic minorities in virtually all major health status indicators. The notion of socially induced stress as a precipitating factor in chronic disease is gaining acceptance. Many now recognize that stress can be one of the components of any disease, not just of those designated “psychosomatic.” Indeed, chronic diseases are etiologically linked to excessive stress and, in turn, this stress is a product of specific socially structured situations inherent in the organizationof modern societies. Even susceptibility to microbial infectious diseases is now considered a function of environmental conditions that culminate in physiological stress on the individual, rather than simply a function of exposure to an external source of infection.

      Current epidemiologic evidence documents the persistent health status differences in the U.S. population, in which Blacks, Native Americans, Native Hawaiians, and Southeast Asians, in particular, carry a disproportionate burden of morbidity and mortality. These facts create a vicious cycle as poor health status leads to emotional upheaval, stress, and other mental health sequelae; in turn, these disparate mental health implications lead to disparate physical health effects. A review of literature on the subject reveals that stress is a contributor to disease risk and impacts the psychosocial resources of persons such as coping and social support. Indeed such stress moderators partially account for ethnic health disparities:

       [A]t the core of ethnic health disparities is differential exposure and vulnerability to psychosocial stresses moderated by inadequate access to and control over essential material, psychological, and social resources. . . . [T]his disadvantageous stress-resource imbalance is created by social status, defining attributes of race [and] ethnicity and social class that define the social hierarchy and life opportunities [in America].

      Psychosocial behavioral risk factors are “nested within geographic, developmental, [and] occupational social environments.” The individual characteristics cannot therefore adequately explain environmental effects on health. Predictors of health and health differentials between groups are shaped by race, ethnicity, and social class. Accordingly, contextualization is as important an instrument of analysis in healthcare as it is in legal analysis.

      Macro-social factors such as poverty and social status influence health through a variety of intermediary mechanisms, including individual health behaviors, access to and control of psychosocial resources, and exposure to chronic life stresses. For instance, doctors caring for inner-city patients have noted that such patients attend with a greater number of “sociomas,” the psychosocial bundle of burden disparately affecting people of color. The evidence shows that Blacks are generally exposed to more chronic and insidious stresses and report more distress, disease, and dysfunction than Whites. This in turn feeds into general health care issues on many levels. The circularity of physical and mental health is highlighted by the Surgeon General's remarks that, “Americans do not share equally in the best that science has to offer. . . . [D]isparities in mental health services exist for racial and ethnic minorities, and thus, mental illnesses exact a greater toll on their overall health and productivity.”

       As part of his commitment to the elimination of inequality for Americans with disabilities, President George W. Bush established the President's New Freedom Commission on Mental Health in April 2002. The Commission was charged with identifying policies that could be implemented by all levels of government to maximize the utility of existing resources, improve coordination of treatment and services, and promote successful community integration for all persons with serious mental illness or emotional disturbance. The Commission began on the heals of the first ever Surgeon General's report devoted entirely to mental illness.

      According to the report, mental health is essential for personal well-being, family relationships, and successful contributions to society. While documenting the disabling nature of mental illness, the Surgeon General's report also indicates that, as with access to physical health, there are racially disparate statistics with respect to mental health. Specifically, racial minorities have less access and availability to mental health care and tend to receive poorer quality mental health services. More relevant to the analysis contained in this Article, the report indicates that factors such as race, ethnicity, and culture affect all aspects of mental health and illness but have particular impact upon the nature of the stressors confronted. A growing number of researchers have emphasized that racism is a neglected but central societal force that adversely affects the health of people of color.

      The cause of these adverse effects comes in two forms. First, the quality and quantity of health-enhancing resources, including medical care, are disparately distributed to members of marginalized communities. Second, racism shapes the creation and operation of societal institutions, socio-economic opportunities, mobility and access, life opportunities, and the general well-being of racialized groups and individuals.

B. Coping

      Coping is a term used to describe the manner in which individuals respond to stressors. The methods of coping most commonly employed by Blacks further illustrate the connection between racial abuse and the mental and physical sequelae that result from such abuse, and suggest a heightened reaction to specific racial abuses.

      Models of stress and disease often distinguish among stress exposure, which involves confrontation with an environmental stressor, stress appraisal, which involves estimating the relative threat of the stressor, and weighing demands against available resources and stress response, which involves emotional, physiological, and behavioral responses to the appraised stressor. There is, of course, enormous variation in how an individual responds to racial abuse. Four stress coping styles employed by Black individuals have been identified by Myers:

      • the overt expression of anger or fear;

      • suppression and inward direction of anger;

      • artificial methods of reducing tension (e.g., narcotics and alcohol); and

      • self-directed stress-management style based upon the demands of the situations.

      Researchers believe that the fourth option is the most productive and valuable. However, this is not an option for everyone. Inevitably, there are victims of racial abuse incapable of such self-reflection, or without the coping mechanisms for relieving stress. Arguably, these are the individuals most likely to come into contact with the criminal law and for whom an infusion of critical psychology into criminal mitigatory defenses is the most relevant.

      As mentioned above, in addition to the mental sequelae of racism, there are also corollary physiological responses. In assessing the cumulative burden of racism, it is reasonable to expect greater psychological and physiological impacts, and consequently greater allostatic load, in those that report repeated exposure to both objectively measurable stressors as well as subjectively experienced stress and distress due to exposure to racism. Therefore, “stress response,” as explored in the critical psychology, is an essential point of analysis for provocative conduct and the reaction thereto, the disturbance assessed in extreme emotional disturbance, and the mental impairment determination in diminished capacity. Specifically, if the stress response relates to a micro- or macro- aggression, this information may be worthy of evidentiary consideration in the criminal defense analysis.

      Of course, it is also likely that racialized individuals and groups will differ in the degree to which they have developed “racial” filters, cognitive schemas, or scripts that mediate how they interpret and respond to “racially meaningful experiences” experiences. American history and contemporary racial problems may explain why some individuals or groups have more sensitive racial filters that predispose them to interpret a wider range of experiences and events as “racially meaningful.” Such a racial default position should come as no surprise--American history has taught Blacks and other people of color to be wary of Whites and has lead to heightened scrutiny of suspect behavior or speech. Interracial communications are burdened by subtext; little is taken at face value in such interactions and reactions are often devoid of filtration. Admittedly, responses need not be violent. There are substantially different individual responses to stressors. These individual responses are conditioned by factors related to the constitutional make-up of an individual, coping skills, and resources such as financial, religious and familial access for counseling and support. Additionally, psychological behavioral factors are likely to mediate or moderate distress effects on well-being.

      According to Banyard and Graham-Bermaun, “coping occurs in a context shaped by social forces based on gender, race, class, age and sexual orientation. These forces exert a powerful influence both on how a stressfulsituation is appraised and on judgments made about what coping resources are available.” An individual's social position can constrain resources and choice of coping strategies. Therefore, those with more resources typically cope “better.” Members of marginalized groups may face special challenges to active, as opposed to passive, coping. Factors such as limitations on finances, information, and access to requisite technical expertise or other resources, as well as cultural, social, or psychological barriers, may discourage active coping.

      As such, Blacks confronted with interactions that are hostile or otherwise uncomfortable likely adopt a default position, described by critical psychologists as “Constant Threat Awareness,” which ascribes racial animus to those interactions. Unlike most Whites, many Blacks are aware of their racialized status. Blacks are often either consciously or unconsciously on their guard, gauging how they are perceived and treated by Whites and by other ethnic or racial groups. Many Blacks engage in what is colloquially known as “picking your battles.” Such a state of heightened vigilance, hyper-reactivity, and preemptive coping is psychologically taxing, tiring, and is likely to increase the risk of psychological distress and other disorders. In addition to being burdensome, such constant “sizing up,” by which the possibilities for racial conflict are estimated, may lead to misinterpretations or overreactions due to allostatic load. This in turn increases the impact such events may have on health and well-being. Criminal law implications stem from the reasonableness assessment. Indeed, the (over)reaction which might result from a racialized encounter under a scenario of prolonged or heightened threat awareness is the catalyst of the criminal law defense theory. For instance, had the Walker family in Bohanon responded to the threatening letters with violence, such actions might have provided the prototypical case to examine the relevance of critical psychology--the Walker's allostatic loads, threat awareness, and level of (hyper)vigilance would be material for the determination of criminal culpability.

C. The Humiliation Dynamic

      Humiliation is an understandable consequence of racism, especially blatant and explicit racial abuse. Three players must exist in order to create a dynamic of humiliation: perpetrator, victim, and witness. If these three roles exist in the presence of ridicule, scorn, contempt, or other degrading treatment, the humiliation dynamic is likely to occur.

      The humiliation dynamic can cause psychic trauma because repeated subjection to humiliation breeds common contempt, which may be inwardly or outwardly directed. As is the case with stress, individual reactions to humiliation are variable and dependent on a number of factors. The most common consequential responses are:

      • the creation of a person who is very passive;

      • the creation of a person who is enraged; and

      • frustration from the humiliation of racism which can be turned inward resulting in self-abusive behaviors, such as alcoholism or drug-abuse, or in violent acts towards fellow people of color.

       No matter the manner of coping, “in any consideration of the humiliation dynamic and racism, it should be noted that among the most potent consequences of humiliation are that it engenders rage and causes damage to victims' sense of self and identity.”

      It is indisputable that the humiliation dynamic has been employed against African Americans for quite some time. Social control through the use of humiliation pervaded the institution of slavery as Blacks were sold in public auctions, publicly whipped and disciplined, and invasive inspections of their bodies and the bodies of their loved ones were routinely carried out, often in public. Indeed as Fede has noted, “[a] fixed principle of slave law granted masters the unlimited right to abuse their slaves to any extreme of brutality and wantonness as long as the slave survived. [Laws that] appeared to protect slaves from violent [W]hite abuse [in fact served a] legitimating purpose.” In the context of the plantation, all three players necessary for the existence of the humiliation dynamic were present.

       The plantation was the place most masters and slaves struggled to define their relationship . . . Punishment was central to that relationship. There was a coherent purpose in punishment: it was one procedure used to “degrade and undermine” the humanity of the slave and “so distinguish him from human beings who are not property.” At the same time, there were limits on the amount or type of violence that society would accept. . . . But as Daniel Flanigan notes: ‘it was in the protection of [B]lacks from crime rather than the treatment of [B]lack offenders that the criminal law of slavery failed most miserably.’. . .To limit the power of slaveowners was always difficult, and it was not at all irrational to treat the violence they used against their slaves as if it were outside the legal order, as a noncrime. Vicious such a policy choice would be, but it would be logical. . . . The laws actually ‘decriminalized’ violence to the extent that it was thought a ‘necessary’ or ‘ordinary’ incident of slavery.” Whites were actually not discouraged from abusing and humiliating African slaves. Indeed such behavior had moral, physical, and legal sanction.

      The cultural imagery of humiliation is a permanent fixture in the lives of many Blacks. In this vein, the role of the media as a creator and purveyor of culture in the contemporary humiliation of Blacks deserves further analysis. The news media, as well as television programs like COPS, inscribes humiliating images on the psyche of many Blacks. As Griffin has explained:

       One of the destructive results of the legacy of slavery is that African Americans experience themselves as society's underdogs. They undergo a legacy of repeated public humiliations, symbolized for them by the typical nightly local newscast in those parts of the country where it has become routine to have TV coverage of African American males being led to jail in handcuffs for some real or alleged crime. Night after night African Americans sit before their TVs seeing members of their community arrested on charges that are often dropped or that result in verdicts of not guilty, exonerating outcomes that are rarely acknowledged, let alone featured, by the media. The criminal justice system and the news media play very active parts in the everyday humiliations with the accompanying pain, anguish, and sense of oppression experienced repeatedly by members of the African American community as they watch such biased newscasts.

      Media propaganda against Blacks in America has a long history and can be traced at least to the movie “Birth of a Nation.” Other, perhaps more onerous and certainly more obvious instances of humiliation include driving, walking, and standing while Black and Brown. Over the last few years there have been public admissions of what most people of color, especially Black and Brown Americans, have known for years--that racial profiling is a prevalent practice amongst police, security guards, and customs and immigrations officials.

      These encounters are humiliating in the least and enraging at most. To be strip-searched, frisked, and wrongly accused of a crime is a terrifying experience that can generate a plethora of debilitating reactions and emotions. For example, the trauma, both mental and physical, inflicted upon the young Black woman who was publicly strip-searched by metropolitan police in Toronto reveals the depth of this injury. Any public search is degrading and dehumanizing mistreatment calculated to humiliate. The mental and physiological sequelae of a public strip search are almost unimaginable. The effects of such humiliation may render the victim mentally disordered and increasingly vulnerable to racial and other forms of abuse.

       Black communities and the individuals in them are repeatedly injured by humiliation--injury that begins early in life for Black children. The humiliation of Black children is often present in the institutions in which they must participate, such as the educational system. The body of literature on racial disparities in education is substantial. The literature not only deals with the recent increase in educational segregation and the conditional accreditation of some inner city public schools, but also with the negligent and sometimes oppressive conditions under which Black and Brown children are expected (or not expected) to learn.

      One of the more common examples of such educational humiliation is the streaming of Black children, especially boys, into special education classes. Beyond the lowering of personal self-esteem, there is a lowering of esteem associated with one's collective identity, a negative image projected onto entire Black communities. Even for academically successful Black students, it is not uncommon to be taunted by fellow Black students about their academic success. Students are chided about “trying to be White,” their proper English and grammar denounced as “talking White.” It therefore seems that in the academic setting, some Blacks believe that Black academic attainment is an oxymoron or is a badge of inauthenticity or of cooptation into White culture.

       While self-hatred, to the extent that it can be assessed is rare, negative group attitudes and orientations are quite common. Each of these is an acculturation and assimilation strategy for coping with a racialized world. Discrimination affects attitudes and behaviors towards these coping strategies and, to the extent that individuals understand racism and its insidious nature, they tend to defend self-esteem and image. The violence is not self-denigration, as much as it is misdirected anger vented on less well defended targets than the racist society inflicting the abuse. This is precisely the self-loathing and self-denigration that has its roots in past and present racial abuses. The result, for some, is the culturally manufactured self-fulfilling prophecy of violence in Black communities and community norms calling for “keeping it real” or authenticity through gang or street culture, as opposed to through the alleged “majority” indicia of success.

      The anger and rage experienced during these humiliating encounters that is not sublimated via social activism or other constructive behavior is typically discharged in one of two ways, either inwardly in the form of self-destructive behaviors, or outwardly in the form of other-directed destruction. Even where an individual directs their destructive behavior inwards, they are rendered more vulnerable to forms of abuse, creating a spiral of enhanced vulnerability. Racial abuse, whether explicit isolated incidents, ongoing cumulative humiliations, or structural impediments, wears down even the most resilient victims. What therefore, of the more vulnerable members of the Black community who may lack the coping skills of the Walkers in Bohanon and are without substantial coping resources?

      For these individuals, responsive violence may result in prolonged interaction with the criminal justice system. Considering the stigma and loss of liberty resultant from a finding of criminal culpability for murder, relevant information pertaining to the circumstances of the killing and the mental vulnerabilities of the racially abused accused should be considered. Accordingly, critical psychology should be introduced as a consideration for mitigated sentencing where passion exceeds reason.

II. Criminal Law Defenses Capable of Critical Psychology Infusion

       “Those who compose the fringe of society have always been the acceptable scapegoats, the butt of jokes, and the favored whipping boys. It resembles the pattern within psychotic families where one child is set up as “sick” and absorbs the whole family's destructiveness. The child may indeed be sick in unsociably visible and dramatically destructive ways, but the family is unhealthy in its conspiracy not to see in themselves the emanation of such sickness. The child becomes the public mirror of quietly enacted personality slaughter.”

      Traditionally, in order to be considered a homicide under the law, a killing must have been committed with a degree of premeditated coolness and deliberation under circumstances in which “ordinary men” would not have their reason obscured by passion. Such a homicide, typical of what is considered a first-degree offense, must have sprung from a wicked, depraved, or malignant mind worthy of the attachment of criminal culpability. Accordingly, a homicide committed in the absence of these criteria is deemed worthy of mitigation.

      According to the Model Penal Code (“MPC”), “At common law, murder was defined as the unlawful killing of another human being with‘malice aforethought.’“ The difference between murder and manslaughter was generally understood to be the presence or absence of malice. Malice was a complicated concept under the common law that generally included four states of mind:

      • the intent to kill or an awareness that death would result, unless it was caused by the heat of passion;

      • the intent to cause grievous bodily injury;

      • extreme recklessness variously described as circumstances evincing “a depraved mind,” an “abandoned or malignant heart” or a “wanton and wilful disregard of an unreasonable human risk”; or

      • the intent to commit a felony, known as the “felony-murder” rule.

      Therefore, all unlawful homicides committed without malice aforethought were considered either voluntary or involuntary manslaughter. Involuntary manslaughter consisted of unintentional homicide due to ordinary recklessness arising in the commission of minor crimes while voluntary manslaughter, the precursor to extreme mental or emotional disturbance, has been defined as “an intentional homicide, done in a sudden heat of passion, caused by adequate provocation, before there has been a reasonable opportunity for the passion to cool.” Passion has typically been defined as rage, but also includes fear or any violent and intense emotion sufficient to dethrone reason. The essence of voluntary manslaughter is the killing of the “provocateur,” without malice aforethought, under the sudden impulse of passions ignited by the provocation. The provocation defense, as originally conceived, was a concession to human frailty, and perhaps non-deterability, where the provocative act was of such a nature that it disturbed the judgment and mental faculties of the “reasonable man.” The provocative act thus weakened the killer's self-control to the point where he was not sufficiently culpable for murder, but only for manslaughter.

      This concession to human frailty is important and implicates the rationale for consideration of critical psychology as elucidating the psyche of a racially abused offender. The psychology along with the considered affirmative defenses suggests that one who kills while provoked might demonstrate a significantly different character deficiency than one who kills absent such passion.

      The doctrines addressed in this part spring from the evolution of the traditionally defined definition of murder. They are overlapping defenses that take account of the absence of some of the above-mentioned hallmarks of homicide in the first degree--the lack of premeditation, deliberation, and malice. Provocation, extreme emotional and mental disturbance, and diminished capacity share a common genesis, but have evolved to take on separate and unique forms. This part will explore the common history, highlight similarities, and focus on distinctions in these doctrines, especially as they allow for infusion with critical psychology.

A. Provocation

      An intentional killing committed in response to provocation constitutes manslaughter, rather than murder. In most jurisdictions, the defendant must prove the following to establish provocation:

      • that the murder was committed under the influence of the heat of passion, produced by adequate or reasonable provocation;

      • before a reasonable time had elapsed for the blood to cool and reason to resume; and

      • the killing was the result of the temporary excitement, by which self-control was disturbed, rather than of any wickedness of heart or cruelty or recklessness of disposition.

       If these tests are met, the law mitigates the killing to manslaughter. Provocation, therefore, is a rule of mitigation for intentional homicides committed under certain extenuating circumstances. The principle involved suggests that reason would, at the time of a killing, be disturbed or obscured by passion to an extent which might render ordinary or reasonable people liable to act rashly or without due deliberation or reflection and instead from passion rather than judgment. Provocation affects the quality of the offender's state of mind as an indicator of moral blameworthiness. Thus, the defense of provocation exists with respect to a charge of murder even though all the elements of the definition of murder have been established; it is an allowance made for human frailty and a recognition that a killing, even an intentional one, is extenuated by the loss of self-control caused by adequate provocation, and is less heinous than an intentional killing by a person in possession of his self-control.

      In order to determine whether murder should be mitigated to manslaughter, the circumstances surrounding the homicide are examined and an attempt is made to discover if the victim provoked the murder. This examination of the victim's behavior is an essential difference from the Model Penal Code requirements-- only at common law is there a direct provocative nexus requirement between the victim and the insult. Thus, provocation is properly regarded as legal recognition that an inquiry into the reasons for the actor's formulation of intent to kill might reveal factors significant for the grading of the offense. Racist abuses leveled by the victim, therefore, validly form part of the inquiry into the criminal culpability of the offender.

      Whether the provocation defense is properly categorized as a partial excuse or partial justification is disputed. Seen as a partial justification, the moral notion that the punishment of wrongdoers is justifiable surfaces as a veiled rational. This formulation itself creates a moral problem, as it is disconcerting to suggest that there is less societal harm, and accordingly less criminal responsibility, for a victim's death given his or her immoral or offensive behavior. In this vein, it is inappropriate to construe provocation as a doctrine of justification as the victim's immoral conduct should not, theoretically, jeopardize their life.

      While it is arguably never morally right to kill a wrongdoer, it is implicit in the construction of provocation as justification that the deceased provocateur is complicit in orchestrating the loss of self-control of the accused. Similar to the contributory negligence doctrine, the accused, under this formulation of provocation doctrine, is at least partially morally justified in responding punitively against the deceased offender. Accordingly, the paradigmatic facts in a provocation case do not involve the prototypical innocent victim, rather there are arguable moral wrongs committed by all parties involved in the crime--both victim and perpetrator. Indeed, it may be disingenuous to claim that the provocation doctrine does not involve a certain amount of victim-blaming, or at least conduct-blaming, as the actions of the victim by necessity inform the deliberation of what is adequate or reasonable provocation, its seriousness and the accused's corresponding ability to control him or herself.

      In the realm of a violent response to a racial offense or insult, the victim intentionally inflicts wounds that are orchestrated to be devastating. It is unlikely that a racially abusive victim is unaware of possible consequences of his abuses; indeed, the provocateur likely recognizes and intends the provocative effect of his words or deeds. Just as a defendant claiming self-defense must properly tender the conduct of the victim, so too in articulating racial abuse as provocative must the conduct of the victim be critically examined. The examination is two-fold.

      Common law provocation has both an objective and subjective framework for this analysis. Traditionally, courts limited the circumstances of adequate provocation by casting generalizations about reasonable human behavior into rules of law that structured the doctrine. Adequacy was measured by reference to the objective standard of the hypothetical “reasonable man.”

      Further, a series of categories emerged to define conduct that a jury might deem adequate provocation. First and foremost, a physical attack might constitute provocation, though not every technical battery could suffice. Of course, even a violent blow would be inadequate if the deceased were entitled to use force, for example in self-defense. Mutual combat became another established category of provocation. Less clearly, a threat of physical attack might constitute provocation, at least in extreme cases. Unlawful arrest would sometimes suffice, and the law frequently recognized witnessing adultery as provocation for intentional homicide of either the unfaithful spouse or the paramour. Certain other acts--chiefly violent or sexual assault on a close relative--might also constitute adequate provocation. Importantly, the courts excluded some situations from the jury's consideration altogether. Thus, it became an established rule at common law that words alone, no matter how insulting, could not amount to adequate provocation. This restriction does not form part of the expanded Model Penal Code provision--extreme emotional or mental disturbance may, in fact, be generated by words. Therefore, as a point of departure for critical psychology, it is fair to interpret the MPC version of provocation as allowing for greater infusion.

      The above-mentioned acts mitigate homicide to manslaughter because they create passion in the defendant such that any ensuing violence is not considered the product of free will. Critical psychology is implicated by the possibility of passion generated by racialized psychological issues which adversely affect free will. Provocation, as a doctrine, allows for the possibility that some instances of intentional homicide may be as attributable to the extraordinary nature of the situation as to the moral depravity of the actor.

       The slighter the provocation, measured against the reasonable person, the more reason for defining the actor's behavior as idiosyncratic and to see the result as his own extraordinary susceptibility to intense passion, or deficiency of reason. However, this objective analysis cannot be equitably applied without some removal of the reasonable person from the realm of the abstract--there should be some subjectivization and contextualization to ensure that the objective standard reflects societal realities. I have suggested elsewhere that it is in this regard that critical psychology could prove useful:

       Clearly, in order for the reasonable person to be “similarly situated and similarly insulted” and to assess racial abuse, the context of the reality and legacy of racism must be considered. Surprisingly and unfortunately, the consequences on the body, mind, and spirit of living in a world where one is subject to systemic discrimination on a regular basis have largely been unexplored by criminal justice systems. The courts are in a pivotal role of evaluating expert evidence in a manner that will not add to the vulnerabilities of those who come to them seeking justice. “Only by integrating scientific advancements with our ideals of justice can law remain a part of the living fiber of our civilization.”

      For provocation to be adequate, it must be “calculated to inflame the passion of a reasonable man and tend to cause him to act for the moment from passion rather than reason.” Racial epithets, or the weaponry of words, are a quintessential example of calculated attacks intentionally meant to inflame or wound the person at whom they are directed. To determine what is reasonable or adequate provocation, the factfinder must consider what would naturally tend to produce such passion in ordinary people that self-control is lost and one acts on impulse without reflection.

      Bohanon utilizes the epithet “[B]lack bitch,” which implicated both the race and sex of the victim. A simple electronic search reveals that this particular slur was used in over 200 reported cases to abuse Black women. The reported cases no doubt comprise only the tip of the iceberg. The searches referenced in this Article reveal that words are indeed frequently and intentionally deployed in abusive ways.

      The victims, the Walkers, were naturalized citizens of the United States who emigrated from Jamaica. Thinking Mr. Bohanon to be down on his luck, the victims befriended him and introduced him to their friends. When the Walkers expressed disapproval of the romantic interest Bohanon showed in their niece, they started to receive threatening and vile letters. Bohanon sent between 100 and 300 such letters. The letters often contained obscenities directed to the Walkers, such as the following:

       Yo mama is the deadest piece of third world dog sewage nigger in the grave of Foney ass Jamaica. Worms crawl all over her rotten carcus and she loves it. . . . This dead bitches skin has peeled off and her hair is so dry it feels like cardboard, I mean this bitch is dead. Your wife is next and when she hits the grave she will look like a big tub of nasty ancient. While doing the autopsy before her funeral, they are going to cut her rectum out and those sick doctors are going to fuck her with a big greasy louiville slugger until the bottom fall out of that rotten dead body. They will be vendictive and fuck her in the ears and eye sockets[,] piss on her dead carcus then take that wet greasy bat and beat her whole body until it sweals and swealters up like a balloon. . . . They will then urine on it, ten or fifteen different people and then prepare that black pile of shit for the wake. A word from you mother: Son I feel like a dried up bitch, I'm wrapped in worms like a dead mummy, it's mommy.

      The language Bohanon used is deeply offensive on many levels including, but not limited to, race, sex, national origin, and sexuality. Much of this language might insight responsive violence, but the provocative potential of the racialized abuse is particularly relevant since the court in Bohanon recognized that the Walkers had suffered psychological injury from the communications. Specifically, the court accepted the testimony that the Walkers had been humiliated, lived in fear and were understandably stressed by these incidents.

      Had the Walkers responded to Bohanon's letters with violence, they would deserve sentence mitigation. However, in that situation, the common law, as codified in most jurisdictions, would deny this relief. In so doing, the law denies the reality of psychological injury acknowledged both by the critical psychology and the Bohanon court. At this critical nexus, therefore, the ability of the traditional American common law doctrine breaks down to abstraction in its dismissal of the provocative potential of words alone.

      Of course, the jury would still need to be satisfied that the provocation at issue did, in fact, produce a mental state of passion in the offender. Provocation is not an applicable defense unless the accused was actually provoked. As stated in the MPC, “[t]he underlying rationale is that the individual whose passions are not aroused by provocation merits the same condemnation and punishment as one who kills without provocation of any sort.”

       Hence, the provocation doctrine requires a subjective assessment of the psychological situation of the accused--even a psychological situation rendered disparate by racism and its effects. This subjective mental state should, accordingly, be informed by the critical psychology where appropriate. Such outsider psychology, which recognizes the subjectivity of experience, especially as it implicates race, ethnicity and gender, comports with the court's recognition in Bohanon that the Walkers were psychologically injured, stressed, and humiliated. People with weaker coping skills and resources than the Walkers, might have had their “human frailties” exposed, might have reacted with less restraint than the Walkers were able to muster and, accordingly, might have needed a defense which recognized the provocative capacity of racialized abuses. While the common law defense of provocation would likely deny mitigated sentencing in the hypothetical posed above, the Model Penal Code's more expansive scope would allow for greater consideration of critical psychology in the Bohanon situation.

B. Extreme Emotional Disturbance

      The Model Penal Code departs from the common law defense of provocation in significant ways. As codification of homicide laws engendered a variety of approaches to the offense of murder , the drafters of the MPC rejected many of these developments. In promulgating the Model Penal Code, the drafters noted that “the law . . . was not well developed” and the “perception on which the Model Code was based was that this pattern of statutory treatment was substantially deficient for failing to confront the major policy questions posed by the offense.”

      Consequently, Model Penal Code section 210.3 defined manslaughter as follows:

       (1) Criminal homicide constitutes manslaughter when:it is committed recklessly; or a homicide which would otherwise be murder is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.

       (2) Manslaughter is a felony of the second degree.

      Accordingly, extreme emotional disturbance, the MPC version of provocation, has two principle elements: the defendant must have acted under the influence of extreme emotional disturbance and there must have been a reasonable explanation or excuse for such extreme emotional disturbance, the reasonableness of which is to be determined from the viewpoint of a person in the defendant's situation under the circumstances as the defendant believed them to be. The first requirement is wholly subjective as it involves a determination that the particular defendant did in fact act under extreme emotional disturbance, that the claimed explanation as to the cause of his action is not contrived or a sham. The second component was designed to replace the rigid rules that had developed with respect to the sufficiency of particular types of provocation, such as the rule that words alone can never be sufficiently provocative.

      This expansion allows for a consideration of racial imagery, symbolism, or articulations as violence. The ultimate test remains, however, objective. There must be a reasonable explanation or excuse for the actor's disturbance. In order to determine whether defendant's emotional disturbance, and not the act of killing, was supported by a reasonable explanation or excuse, the subjective internal situation in which the defendant found himself and the external circumstances as he perceived them should be viewed from the standpoint of the accused (no matter how inaccurate that perception may have been). An assessment must be made of whether the explanation or excuse for the emotional disturbance was reasonable so as to entitle the defendant to a reduction of the crime charged from murder to manslaughter.

      Critical psychology has much to add to this analysis, not only with regard to the reasonableness of any emotional disturbance based upon racialized violence, but also as to the normative basis. It is imperative to recognize that the test is not whether it is reasonable to kill but whether the emotional disturbance was reasonable given the situation as the accused assessed it. According to Herbert Wechsler, one of the architects of the MPC, “The purpose [of this expanded version of common law provocation] was explicitly to give full scope to what amounts to a plea in mitigation based upon a mental or emotional trauma of significant dimensions,with the jury asked to show whatever empathy it can.” Critical psychology speaks directly to such trauma and racialized stress and is capable of infusion into the criminal law to grant mitigation based upon the mental sequelae of racism.

      Accordingly, the MPC made significant changes to the common law definition of manslaughter. Most importantly, the MPC drafters intended extreme mental or emotional disturbance to be both broader and more subjective than provocation was at common law. The MPC defense is a considerably expanded version of the common law defense of heat of passion on sudden provocation.

      For instance, the MPC allowance for distress in the abstract is a significant departure, especially insofar as critical psychology is concerned. The MPC does not require that the actor's emotional distress arise from some injury, affront or other provocative act of the deceased. Emotional distress and some reasonable explanation for its existence is sufficient. The MPC states:

       Under the Code, mitigation may be appropriate where the actor believes that the deceased is responsible for some injustice to another or even where he strikes out in a blinding rage and kills an innocent bystander. In such cases, the cause and intensity of the actor's emotion may be less indicative of moral depravity than would be a homicidal response to a blow to one's person.

      Accordingly, by not following the common law's traditional adherence to rigid rules limiting provocation to certain circumstances, the MPC allows the trier of fact to decide, where there is evidence of extreme emotional or mental disturbance, whether the circumstances provide a reasonable excuse for the actor's mental condition. By abandoning preconceived notions of what is adequate provocation, the MPC allows a jury to consider critical psychology in its deliberations.

      Most importantly, the MPC broadens the objective analysis of provocation. In assessing the reasonableness of the excuse, the relevant viewpoint is that of a person in the actor's “situation” under the circumstances as he believed them to be. The MPC drafter's intentionally used the ambiguous term “situation” to allow a rich examination of context, while still preventing idiosyncratic individualization of the legal standard. For example, situational context allows consideration of physical handicaps such as blindness, yet excludes idiosyncratic moral values such as an assassin's belief that it is right to kill a political leader. The MPC also explains a middle ground:

       In between these extremes, however, there are matters neither as clearly distinct from individual blameworthiness as blindness or handicap nor as integral a part of moral depravity as a belief in the rightness of killing. Perhaps the classic illustration is the unusual sensitivity to the epithet “bastard” of a person born illegitimate. An exceptionally punctilious sense of personal honor or an abnormally fearful temperament may also serve to differentiate an individual actor from the hypothetical reasonable person, yet none of these factors is wholly irrelevant to the ultimate issue of culpability. The proper role of such factors cannot be resolved satisfactorily by abstract definition of what may constitute adequate provocation.

      Extreme emotional disturbance, therefore, places far more emphasis on the subjective mental state of the actor than does the common law defense of provocation. The MPC does not dismiss situations where the provocative circumstance is something other than an injury inflicted by the deceased on the actor, but rather focuses on whether some event aroused extreme mental or emotional disturbance. The extreme emotional disturbance defense permits the defendant to show that his actions were caused by a mental infirmity, below the level of insanity, and that he was less culpable than an accused not so disturbed. At this juncture the critical psychology may become particularly relevant to a racialized offender. The literature may indeed provide sufficient support for an infusion into the criminal law of information detailing the distressing, humiliating and cumulative impact of racism, the allostatic load if you will.

      The MPC bolsters the notion of cumulative or serial provocation by jettisoning the concept of a cooling off period, a bedrock component of the common law. The cooling off period rule temporarily limits access to the defense even where the defendant had not actually cooled and was still enraged at the time of the killing. The MPC, however, does not speak to this issue and the omission of this temporal restriction on passion leads to the conclusion that so long as the offender was laboring under the condition of extreme emotional disturbance, for which there is a reasonable explanation or excuse, the defense is appropriately considered.

      The calculus of what is or is not reasonable allows for an assessment of the cumulative and ongoing impact of racism, as analyzed by critical psychology. Where appropriate, such infusion makes acceptance of relevant critical psychology pragmatic, equitable and necessary. Wechsler's explanation of the MPC heat of passion provision indicates that the extreme emotional disturbance defense is just what it says--a broad allowance for mental trauma, whatever the source, such that the jury might properly consider the full scope and impact of the relevant impairment.

C. Diminished Capacity

      Turning from heat of passion defenses, diminished capacity provides another venue for consideration of critical psychology. The diminished capacity doctrine allows a criminal defendant to introduce evidence of mental abnormality at trial for one of two reasons. The first possibility is essentially a rule of evidence which allows for negation of a mental element of the crime charged, so as to create a reasonable doubt in the minds of the jurors regarding the presence of a statutorily required mens rea element, thereby exonerating the defendant of that charge. Used in this fashion, diminished capacity is a failure of proof defense as it negates specific intent such as malice, premeditation, or deliberation in murder trials by the tendering of evidence establishing the offender's mental incapacity or abnormality, short of insanity.

      Diminished capacity may also be invoked at trial as a defense to homicide offenses. Rather than negating mens rea, its utility stems from the fact that it is an affirmative defense that provides either an excuse or a justification for the crime, thereby offering the opportunity for a mitigated sentence. Diminished capacity may permit proof of mental abnormality or defect severe enough to preclude liability for murder (of any degree). In this way, evidence of diminished capacity may be used to reduce the degree of a crime for which the defendant may be convicted, even if the defendant's conduct satisfied all the formal elements of an higher offense. A successful assertion of this defense results in the accused being adjudged guilty of a lesser degree of the crime because mental or emotional impairment, short of insanity, mitigated their moral blameworthiness and culpability for the act. Accordingly, this version of diminished capacity has been conceptualized as a partial or incomplete defense based on mental abnormality or defect.

       The difference between insanity and diminished capacity is one of degree. Just as the criminal law differentially punishes people based upon gradations in mens rea, no principled basis exists for ignoring gradations where mitigating defenses are concerned because, “[t]he proferred evidence is no less reliable in the case of diminished capacity than with insanity. As long as the jury, not the ‘expert’, resolves the moral issues of accountability, there is no good reason for closing our eyes to partial responsibility claims.” Again, critical psychology becomes relevant as certain accused persons may suffer from diagnosable ailments generated by the violence of racism that do not rise to the level of insanity.

      That being said, some scholars believe the doctrine of diminished capacity in the context of murder focuses on the wrong question. Professor Morse, for instance, advocates that rather than focusing upon “difficulties, burdens, problems, and misfortunes suffered by the perpetrator,” we should ask, “how hard is it not to offend the law?” Morse believes that the response to this question would reveal that it is not that hard to avoid breaking the law. He argues:

       How hard is it not to offend the law? How hard is it not to kill, burgle, rob, rape, and steal? The ability to resist the temptation to violate the law is not akin to the ability required to be a fine athlete, artist, plumber, or doctor. The person is not being asked to exercise a difficult skill; rather, he or she is being asked simply to refrain from engaging in antisocial conduct. Think, too, of all the factors mitigating against such behavior: parental, religious, and school training; peer pressures and cultural expectations; internalized standards (“superego”); fear of capture and punishment; fear of shame; and a host of others. Not all such factors operate on all actors or with great strength: there will be wide individual differences based on life experiences and, perhaps, biological factors. Nonetheless, for all persons there are enormous forces arrayed against lawbreaking.

      While persuasive, Morse's underlying assumption must be that the accused is an er(raced) person as many of the factors stressed as mitigating against lawbreaking have particularly responsive, defensive and even revolutionary messages for persons of color--messages which some, outside communities of color, may find antisocial. Indeed, the role of the Black Church, family, and school were integral to the civil rights movement--a movement that at its initiation involved lawbreaking and behavior then seen as antisocial. It is indeed hard to avoid breaking the law in some situations into which persons of color may be forced. For instance, in the case of the cross-burning on the private property of a Black couple, might the law be asking too much to demand that the couple faced with this racialized violence and intimidation not be excused from or justified in a violent response? Professor Paul Butler has analyzed the utility of using subversion, and even violence, to change unjust laws:

       The struggle of African Americans, and many concerned others, to crush both the “peculiar institution” of slavery and Jim Crow segregation, is well known and shall not be rehearsed here. . . . The first observation is that the conversion of these discriminatory laws was caused, in part, by violence and subversion.

      Further the very definition of antisocial conduct is contextual--what is antisocial in one situation might be seen as legitimate self-defense in another. Similarly, what is antisocial to one person might be seen as mere speech to another--what is antisocial behavior to persons from a majority might be seen as provoked behavior from a racialized community perspective. The definition of antisocial or violent behavior cannot be artificially abstracted to the point where race is removed from the analysis--a more nuanced approach to this endeavor is required. Furthermore, justifying or excusing the behavior of such a defendant does not result in acquittal. Rather, as with provocation and extreme emotional disturbance, the diminished capacity defense serves only as a partial defense to reduce duration of imprisonment or to preclude execution.

      While as Morse stresses, “the function of conviction and sentencing is to punish the actor for what he has done, rather than for who he is,” the affirmative defenses offered by the criminal law clearly provide for the possibility that what the actor has done necessarily calibrates with who he or she is. Indeed the “reasonable person” standard found in the defenses of provocation and self-defense necessarily focuses some of the inquiry on the characteristics of the accused. Further, the affirmative defenses, compartmentalized between excuse and justification, do not function in the abstract--who the accused is, and how she has become that person is relevant to the calculus of whether she is worthy of mitigation for the crime committed. It is appropriate to consider any reasonably provable factors that tend to demonstrate that the actors' accountability for their actions is less than that of normal persons under normal circumstances. Indeed as Professor Dressler has indicated:

       In our quest to treat people with dignity, we also must not cruelly ignore evidence of illness or other relevant forms of impairment. Each person is unique. We treat criminal actors with dignity when we treat each individual as unique. That means we should consider, and not ignore, the ways in which they differ from other people. One difference may be their mental impairment. If all people, as a species, possess free will, not all people command an equal degree of free will.

      Accordingly, the critical psychology above should be considered during criminal trials, where relevant, to elucidate the issues of mental impairment which might actually relate to significant social differences in society, such as race and ethnicity. While admittedly a social construct, the notion of race as carrying societal currency has operated to shape the lives of all Americans irrespective of color and its ramifications impact Americans' lives in both trivial and profound ways.

       As W.E.B. DuBois has indicated, “[t]he problem of the twentieth century is the problem of the color line.” Given the reality of historical and contemporary racism in twenty-first century America and its resultant psychological and physiological effects, there is still significant explanatory power, whether excusatory or justificatory, to be gleaned from the ravages of racism in the criminal law context. Mitigating psychological factors may stem from this reality of the color line and should be considered just as any other relevant evidence of mental impairment should be examined in the criminal trial setting. Hence mitigatory considerations for the sentence of the accused should be examined through the lens of a defendant's lived reality. This reality may reveal significant mental health issues which impact upon the issue of moral guilt and criminal culpability. Indeed, as Justice Frankfurter noted in his dissent in Fisher v. United States, “[m]urder cases are apt to be peculiarly individualized.”

      Fisher involved a Black defendant who intentionally strangled a White librarian. While Fisher was not legally insane, he was “mentally subnorma[l].” He suffered from an aggressive psychopathic condition that affected his behavior. He killed suddenly, but intentionally; yet, he acted only after the victim called him a “Black nigger.” He was sentenced to death. Dressler's comments about Justice Frankfurter's dissent are apt:

       Fisher's impairment, and the victim's racial epithet, may not have been the legal causes of his conduct. His free will acts were the cause. Because he had free will, and chose to kill, he should be punished. But my intuition tells me that the information proferred by the defense would have been highly relevant to morally sensitive jurors in their decision regarding Fisher's degree of moral guilt. Jurors might conclude that it was harder for Fisher than for the juror not to kill.

      In this way the culpability of Fisher as a Black man suffering from mental impairment, whether brought on by, or merely exacerbated by, the consequences of race and racism in America, should have been addressed in a holistic fashion to better judge his moral and legal responsibility. The abnormality, when it impairs the exercise of free will, is most relevant to the triers of fact. When the free will of the accused is compromised in some substantial and verifiable way, the jury ought to consider its potential as a source of mitigation, especially when the accused faces the death penalty. Criminal sanctions might properly be vitiated due to an impairment of the accused's volition (such that his intentional commission of the actus reus is questionable) or cognitive functions (such that his ability to form the mens rea) are compromised. Dressler explains this reasoning in greater detail:

       [I]nternal forces that serve to prevent law-breaking do not operate equally, or at all, on all people. Where there exists reliable evidence that a particular defendant suffers from some condition, the existence of which has substantial explanatory force regarding the criminal events and helps to explain why the actor committed the crime, then we have learned something very important about the actor (but not about the ultimate harm) that ought not to be ignored. We should not punish persons for possessing bad character, nor should we mitigate or exculpate because of good character. But we ought to consider explanations for behavior that indicate that the actors' personal blameworthiness for the events--their moral accountability for the harm--is less than we ordinarily would expect.

      Obviously psychiatric or psychological testimony about diminished capacity must be included in such analysis. This prospect is controversial. Many fear the mental health professional will usurp the role of the judge and jury.

       Despite the doctrinal possibilities generated by the infusion of critical psychology into the diminished capacity defense, a nagging concern remains. Unlike provocation or extreme emotional disturbance, diminished capacity is entirely subjective in its recognition of the actor's own mental disorder or emotional instability as a basis for partially excusing his conduct. This removal of analysis from the realm of the objective is worrisome as it has the potential to allow for the peculiar idiosyncrasies of the accused to propel mitigation. Accordingly, the project of diminished capacity doctrine may actually be antagonistic to critical psychology which highlights the possibilities of disparate mental health sequelae as reasonable and expected results of racialized violence, not as peculiar or deranged freak occurrences. The critical psychology discussed above explores the disparate mental health sequelae of persons struggling to cope in unbearable situations-- persons taxed to the breaking point so the catalyst racialized event is the proverbial straw that breaks the camel's back. Further research is in order to ascertain the capacity of racialized abuses to generate defects of the sort conceptualized by diminished capacity. I doubt not that this potential exists, but I am concerned for pathologization of the Black person's experiences and responses to racialized violence. Such potential for pathologization is a well-founded fear. Pathologization shifts the focus to the mental abnormality of the actor and away from an assessment of the deviance of racism itself and its capacity to injure otherwise healthy individuals.

III. Concerns With Infusion--Identity, Pathologization, and Access

       “Men are so necessarily mad, that not to be mad would amount to another form of madness.”

      Consequences flow from one's identity. However identity is a subject which defies easy definition. Conceptually, identity theory considers who we are, or more accurately, who we think we are and peripherally, how others perceive us. Identity is not static, rather there is an evolutionary process, which implies contextual fluidity, which is itself tethered to the groups, networks, societal structures, practices, and performances to which people and their identities are rooted. It is not simply a mental exercise to determine whether mental disability is an identity that, much like race, gender, and sexual orientation, marks an individual such that societal consequences follow. Even to conceptualize disability as such othersthis “identity” as a marker which definitionally holds limitations within its very construction. Limitation is intrinsic in defining the identity and accordingly it marginalizes the disabled as “less than” the “abled.” Those labeled disabled are defined as lacking in relation to the “abled” norm. Given these concerns, it might be conceptually preferable to consider mental disability as a mental “vulnerability” or “mental challenge.” This is consistent with the more inclusive and sensitive language of “physical challenge” (as opposed to physical disability), which recognizes that the difficulties stem equally, if not predominantly, from societal construction, both literal and figurative, which delimit access. A postmodern critique is, therefore, conceivable--a critique that acknowledges the externalities implicated in creating the status quo and constructing mental challenge as a site of marginalization.

      In this vein, while mental vulnerabilities themselves create limitations, such as the inherent challenges deriving from the status, a postmodern analysis demands recognition of the societal manufacturing of that which is oppressive. As with other markers of identity, it is the societal reaction and ascription of marginal status that “disables” the identity. As a society, with the help of certain disciplines, in this context mental health professionals, we “mark” those with mental vulnerabilities as less than--they are alternatively ignored, marginalized, incarcerated, or otherwise locked up. Society ascribes those with mental vulnerabilities a marginal identity deserving of legal consideration. Hence mental vulnerability, even within the context of critical psychology, is a site worthy of criticality due to the possibility and propensity towards pathologization.

      That pathologization, the ascription of disease, dysfunction, or deviance from the norm, has been utilized as a sword against members of marginalized groups is an uncontroversial historical reality. Psychiatry and psychology, like all disciplines, are constructed cultural products and mechanisms of society. The manifestation of discrimination in such, abstractly, noble professions is not surprising given that all noble endeavors, like law, have also been co-opted for ignoble ends. This is inevitable given that all doctrine, no matter the profession, is “man-made,” interpreted and applied by people who, although claiming otherwise in the interest of supposed objectivity, bring their own societal-discriminatory baggage to bear. Thus, recognition of the possibilities for use of critical psychology as a mechanism to further the interests of marginalized persons is ironic given historical uses of mental health disciplines to subjugate these same interests and communities. The tension created by this irony should not, however, found the sole basis for dismissal of either the doctrine or the disciplines, rather the utility, and indeed the determination to dismantle the master's house with his own tools, is a strategic decision made with full knowledge of the ugly history.

      The history of psychiatry itself reveals the paradox inherent in utilizing mental health constructs with the normative goal of achieving liberatory ends. For instance, early psychiatrists felt that a “madman” was a savage beast who needed to be confined, dominated, and beaten. Madmen were treated as animals based on the theory that a combination of fear and pain would rid them of the thoughts upon which they were fixated.For example, Thomas Willis, one of the first English physicians to write extensively on madness, explained that the insane, having lost their reason, were fierce creatures who had “descended to a brutish state” and “enjoyed superhuman strength.” If the mad were to be cured, they:

       needed to hold their physicians in awe and think of them as their “tormentors.” Discipline, threats, fetters, and blows are needed as much as medical treatment. . . . Truly nothing is more necessary and more effective for the recovery of these people than forcing them to respect and fear intimidation.

      Such rhetoric of the “lunatic” as beast or animal possessing superhuman strength is disconcerting given its resonance with stereotypical depictions of Black people. Racist vitriol often invokes the animalization of Blacks and a call for containment based upon superhuman strength and brutish tendencies. Furthermore, the historical role of the mental health professional in orchestrated intimidation has historical connections to the abuses of slavery discussed above. The connections are troubling as the history of the mental health profession indicates that doctors would resort to what they called “breaking” their patients. Breaking would involve bleeding, purging, emetics, nausea-inducing agents, blistering, and near-starvation diets, in order to “reduce even the strongest maniac to a pitiful, whimpering state.”

      There was a clear racist subtext to early mental health “science.” The Mentally ill were also seen as unfit to breed and produce children. Based on the idea that the mentally ill should be sterilized, speakers at the Second International Congress on Eugenics presented papers suggesting that the “financial costs societies incurred by caring for defectives, the inheritability of insanity and other disorders, and the low birth rates of the elite in America” necessitated serious consideration of the sterilization of undesirables. It is a slippery slope from undesirable to White supremacy as the conference delegates spoke on “The Jewish Problem,” the dangers of “Negro-White Intermixture,” and the “Pedigrees of Pauper Stocks.”

      This racialized bias in mental health has a long history. “During the nineteenth century, the perceived mental health of African Americans was closely tied to their legal status as free men or slaves.” African Americans who lived in free states or stated a desire for freedom were at a heightened risk for being deemed mad. The Census of 1840 reported that “insanity was eleven times more common among Negroes living in the North than in the South.” Southern politicians used this statistic as evidence that “bondage was good for Negroes” and used mental health rhetoric to justify the peculiar institution. Indeed, Senator John C. Calhoun reasoned that slavery was necessary because “[t]he African is incapable of self-care and sinks into lunacy under the burden of freedom. It is a mercy to give him the guardianship and protection from mental death.”

      With any doctrine, science, or principle, whether good is achieved depends on its application and deployment. While intrinsic doctrinal neutrality might not exist either, it is clear that historical utilization of the “sciences” has produced sites of marginalization with findings of congenital illness along racial lines--mental health diagnosis have not been immune from such misuse and has historically been used to oppress the marginalized according to race. For instance, in 1851, Samuel Cartwright, a prominent physician, wrote in the New Orleans Medical and Surgical Journal that he had discovered two new types of insanity among slaves. The first, drapetomania, was diagnosed every time a slave desired to run away. The second, dysaesthesia aethiopis, was characterized by idleness and improper respect for the master's property. Dr. Cartwright advised that light beatings and hard labor reliably cured this mental illness. Accordingly, medicine could turn an “arrant rascal” into “a good Negro that can hoe or plow.” After the Civil War ended:

       [t]he definition of sanity in Negroes was still tied to behavior that a slave owner liked to see: a docile, hardworking laborer who paid him proper respect. Negroes who strayed too far from that behavioral norm were candidates for being declared insane and were put away in asylums, jails, and poorhouses. Nationwide, the incidence of “insanity” among Negroes rose fivefold between 1860 and 1880, and once again, such statistics were seen by many Southern doctors as evidence that the “colored race” simply couldn't handle freedom.

      Some contemporary information should similarly generate concern about arbitrary diagnosis of mental illness in Blacks. A study in 1982 of 1,023 African Americans diagnosed as schizophrenic determined that 64 percent did not exhibit symptoms necessary, under prevailing American Psychiatric Association (APA) guidelines, for making such a diagnosis. Other studies found that Blacks were being disproportionately put into subcategories of schizophrenia that “connote dangerousness and (pathological) severity,” and that in comparison with whites, they were more likely to be committed against their will to a psychiatric unit.

      Of course, the history of the mental health profession also has gendered dimensions. Women who were found to be insane during the 1890s and the first decade of the nineteenth century were treated by gynecological surgeries because it was linked to the “sexuality” of the woman; an overly sexual woman was seen as abnormal, and therefore, insane. Many gynecologists were so avid in their enthusiasm for curing insanity by surgically removing the uterus or ovaries that the American Medico-Psychological Association, in the early 1890s, cautioned against the overuse of this remedy. Even so, for the next fifteen years, various gynecologists continued to claim that hysterectomies and ovariectomies produced improvement in more than fifty percent of their insane female patients.

      In essence, much of the history of mental health professions reveals the manufacture of “madness” as a site of marginalization and oppression. By exposing that patriarchy of madness, Foucault articulated the artifice of mental illness. Rather than originating in the world of the irrational, the madman is stigmatized since “he crosses the frontiers of bourgeois order of his own accord, and alienates himself outside the sacred limits of its ethic.” Foucault, therefore, insightfully problematized the tensions inherent in a diagnosis of mental illness by highlighting its potential for strategic deployment. He recognized that mental illness has, to a certain extent, been constructed to contain those deemed deviant according to race, gender, class, or sexuality:

       He accepts the Other in so far as the Other conforms to his image and conduct. However, if he and the Other differ, he defines the Other as defective-- physically, mentally, or morally--and accepts him only if he is able and willing to cast off those of his features that set him apart from the normal. If the Other recants his false beliefs, or submits to treatment for his illness, then, and only then, will he be accepted as a member of the group. If he fails to do these things, the Other becomes the Evil one-- whether he be called the Stranger, the Patient, or the Enemy.

      This post-modern conclusion provides a reality-check for one who attempts to advocate the potentially liberatory use of these disciplines. Mental health practitioners and the discipline itself became architects of confinement--in some sense the keepers of the status quo. If, as the marginalized are apt to do, a person of color stepped out of their assigned place or challenged the race-based schema, psychiatry and psychology could be summoned to do the dirty work of maintaining a racialized order which preserved White supremacy. A devastatingly simple example is the case of Clennon King who in 1958 became the first African-American to apply for admission to the University of Mississippi. Mr. King dared challenge the racist status quo by seeking an education. He was committed to a state mental hospital because “any [B]lack man who thought he could get into Ole Miss was obviously out of touch with reality.”

      Similarly, women seeking to operate outside of the ascribed societal dictates were seen as insane. In this context, the diagnosis of “madness” often appears for women who have totally or partially rejected their assigned sex-role. Women who fully act out the conditioned female role are clinically viewed as neurotic or psychotic and their hospitalization or commitment produces diagnosis for predominantly female behaviors such as depression, suicidal tendencies, anxiety neurosis, paranoia, or “promiscuity.” Women who reject or are ambivalent about the female role frighten both themselves and society so much so that their ostracism and self-destructiveness assures them a psychiatric label--if they are hospitalized, it is for failing to adhere to the dictates of their assigned gender, with labels of ‘schizophrenia,’ ‘lesbianism,’ or ‘promiscuity being attached.’

      Moreover, as recently as 1938, moral deficiency, masturbation, misanthropy, and vagabondage were listed among the forty psychiatric disorders in a leading textbook. Homosexuality, which had been universally regarded as a manifestation of mental illness by Western psychiatry, was “officially” de-pathologized in 1973, after a contentious political struggle, by a vote of the board of trustees of the American Psychiatric Association.

       What these seemingly diverse “therapeutic” movements have in common not only with one another but also with such modern totalitarian movements as National Socialism and Communism, is that each seeks to protect the integrity of an excessively heterogeneous and pluralistic society and its dominant ethic. To accomplish this end, each represses certain individual and moral interests, and, in general, sacrifices the “one” for “many,” the “I” for the “we”; finally, to simplify the conceptual problem it faces, and to strengthen group cohesion, each channels--by systematic propaganda accompanied by the use of a brutal show of force--enmity toward a symbolic offender to whom the impending disintegration of the social order is attributed.

      Accepting for the moment that doctrine and discourse are captive and behooven, to a certain extent, to the culture and society in which they are manifested, what does that mean for the application, both legal and psychological, of the critical psychology discussed herein? That an alternative legal or mental health typology generated by those communities most affected by the relevant doctrines does not exist highlights the inherent tension found in so many disciplines--the challenge of using the very same doctrinal tools tainted from the construction of oppressive systems to destroy, reconstruct or reconfigure the system is necessarily precarious. Accordingly, given the problematic history and legacy of diagnostic pathologization of marginalized communities, a perfect legal and ethical option might not exist for racialized communities, other than proceeding with extreme caution while embracing the intention not to allow repetition of past mistakes.

      At this juncture, critical race theory scholarship on multiple identities and systems of oppression is informative, as the importance of the confluence of race and potential pathologization based on mental vulnerabilities is of paramount importance. These frameworks for analysis are alternatively referenced as models which are holistic, intersectional, interlocking, multidimensional or multiply conscious. In any event, it is instructive to use analytical paradigms which recognize that negative societal consequences flow from sites where multiple forms of oppression operate.

      Hypothesizing identity, and the corresponding systems of oppression, as running along a single axis is misleading and has the tendency to oversimplify unstated reference points by essentializing. While it is easier to overlook the distinct characteristics that comprise an individual and instead make an assessment based on an interpretation of “dominant” features, identity performance or ascribed otherness, this point of departure ignores other overlapping reference points by its exclusivity. This phenomenon, of treating identities, or ascriptions, as separate, parallel and independent factors, is known as identity splitting--it is the heuristic counterpoint to what critical race theorist have alternatively recognized as intersecting or multidimensional aspects of personhood.

      The concept of intersectionality emerged out of the particular forms of discrimination experienced by women of color that were neither recognized in feminist legal theory nor traditional civil rights scholarship. It recognized that the totality of oppression at identity crossroads was more than the sum of the parts: “Because the intersectional experience is greater than the sum of racism and sexism, any analysis that does not take intersectionality into account cannot sufficiently address the particular manner in which Black women are subordinated.” Intersectionality illuminates the manner in which women of color are affected by both racial hierarchy and patriarchy.

      In the context of Black women and political discourse, for example, political intersectionality highlights the simultaneous identity positioning within at least two inferior groups--women and Blacks--that frequently experience conflicting political agendas. Intersectionality in this context recognizes that political interests of women of color are masked and sometimes endangered by political strategies that ignore or suppress intersectional issues. Accordingly, the intersectionality model developed as a response to an absence of theoretical or doctrinal approaches to the multilayered and particularized subordination endured by women of color. Such a framework of analysis allows for reflection on oppression in numerous venues, including, but not limited to politics, economics and the law.

      Originally developed in the context of the experiential diversity of gay and lesbian existence, multidimensionality was conceived of as a methodology by which to analyze the impact of racial and class oppressionupon sexual subordination, gay and lesbian experience and identity and to cease treating these forces as separable, mutually exclusive, or even conflicting phenomena. More generally, multidimensionality posits that individual acts of discrimination and the various mechanisms of oppression are complex and multilayered, owing their existence to a host of interlocking sources of advantage and disadvantage.

      Multidimensionality complicates the very notion of privilege and subordination by pushing legal theorists and political activists to recognize the multiple and complex ways in which all individuals experience oppression. As an outgrowth of intersectionality, multidimensionality differs conceptually as it attempts to complicate the implications of intersectionality that may lead to the conclusion that social identity categories or systems of oppression only “intersect” in the lives of persons burdened by multiple sources of disempowerment, such as women of color.

      Both intersectionality and multidimensionality recognize the exacerbation of oppression flowing from the confluence of compounding systems of domination and the complicated matrix of social identity around which power and disempowerment are distributed. Where systems of race, gender, and class domination converge, as they often do in the experience of mentally vulnerable people of color, intervention strategies based exclusively on the experiences of White men will be inadequate to overcome the obstacles faced at the confluence of marginalized identities.

      Similarly the nexus of race and mental vulnerability, as identified by critical psychology, might provide a treacherous point of departure for haphazard or unsympathetic legal intervention for a number of reasons. First, despite unprecedented knowledge gained in the past three decades about the brain and human behavior, mental health, and mental illness in particular, is often an afterthought and illnesses of the mind are shrouded in fear, are misunderstood and maligned. The alternate hyper-visibility or complete invisibility of mental vulnerability translates into punishment --a penalty for the inability, lack of understanding or refusal to adhere to societal mandates. Second, the convergence of racism and mental challenge is a messy affair given historical and contemporary pathologization of Blackness, even in the absence of diagnosable mental health issues.

      One must therefore approach the infusion of critical psychology and the law with caution. Any legal intervention that seeks to infuse the criminal law with the critical psychology addressed above must be done with learned trepidation and conscious caution, for it is a slippery descent to the equivalence of Blackness with madness or Blackness with badness. Concern must also be voiced for the potential over-medication of individuals deemed mad or bad--the equation of Black youth with badness is already a site for critical concern. The ability of the legal and the mental health disciplines to act as both sword and shield is enough to justify an ever-vigilant historically knowledgeable approach to infusion, lest critical psychology be appropriated or co-opted to further subordinating ends.

      While such intersectional subordination does not have to be intentional, and might even be well-intentioned, the interface of race and mental challenge has the potential to be the site of yet another oppressive interaction generated by societally constructed multi-axial oppression. Simply put, the articulation of a multi-axial identity revolving around the intersection of race and mental illness might play all too easily into the hands of proponents of racialized theories of genetic inferiority bent on further disempowerment of already marginalized communities.

      The legal and psychological literature reveals ample reason for concern. Foremost among these are the disparate rates of incarceration and subsequent disenfranchisement of Blacks in America, the over-diagnosis of Blacks with schizophrenia and other conditions leading to over-medication, over-commitment of Blacks to psychiatric facilities on an in-patient basis, and the limited diversity within the professions of law, psychology and psychiatry.

      In addition to the concern for pathologization some would posit a futility to any criminal law recognition of critical psychology in the context discussed above. Specifically, the affirmative defenses discussed above do not implicate mental health treatment modalities; rather they implicate mitigated sentencing and shortened incarceration. The criminal justice system, as it presently exists, is ill-equipped to address the mental health issues of the vast majority of prisoners, let alone the mental health issues which may result from racial abuses. Despite the overpopulation of prisons with people of color, the possibilities of culturally competent mental health services in the prison context are discouraging.

      The likelihood of suitable treatment opportunities is also disheartening outside of the prison context. Even the Surgeon General concluded that the existing mental health care system is ill-suited to address the needs of people of color. The 2001 Surgeon General's supplemental report on mental health emphasizes the importance of considering race, culture and ethnicity in addressing the mental health needs of a diverse population. The report confirms that serious disparities exist regarding the mental health services delivered to racial and ethnic minorities. The supplemental report concludes that to achieve the benefits of effective mental health preventive and treatment services, “cultural and historical context must be accounted for in designing, adapting, and implementing services and service delivery systems.”

       The legal system might similarly do well to examine these matters of context to ensure equality along multiple axes of identity. Despite these cautionary pronouncements, if all Americans, not just the privileged, are to place faith in the criminal justice system and be equal before and under the law, ways and means must be devised for appropriate legal consideration of relevant critical psychology as revealing disparate realities for certain segments of American society.

Conclusion

      Murder should never be condoned nor encouraged. Like many scholars who have analyzed provocation, extreme emotional disturbance, and diminished capacity defenses, I too recognize the need for criticality of their genesis, subordinating potential and rampant misuse.

      In addition to concerns with mitigating defenses stemming from the definitional concern over the unreasonableness of murder, some of the critiques of these defenses stems from their homophobic or sexist application so as to justify or excuse murder fueled by homophobic rage or panic, misogyny and “face-saving” veiled as cultural practices. If these defenses are to be abolished, then so be it--this is indeed a tenable option in light of the homophobia and femicide, that theses defenses have supported. Given the power of patriarchy and heteronormativity however, it is doubtful whether defenses such as these, which have been so effectively deployed to disempower women and gay men, will be quickly discarded. Indeed, in the arsenal of the sexist and the homophobic, or just the plain-old desperate attorney, they are the defense strategy of choice as they resonate with the “majority” when a woman has allegedly been adulterous, or when a man has allegedly “hit-on” another man.

      While it might seem inappropriate in the context of a death to invoke the logic of “what's good for the goose, is good for the gander,” there is a simple equality principle inherent in such “ganderism.” Formal equality, the most basic conceptualization of equality, demands equal treatment for all. The simplicity of “tit for tat” or “an eye-for-an-eye” logic demands that claims by persons of color to access these, admittedly corrupted, defenses be seriously considered. Since these defenses are susceptible to cooptation for subordinating purposes, harnessing the defenses with the normative goal of racial justice is an alternative deserving of reflection--cooptation for liberatory purposes, under principles of formal equality, should be similarly achievable.

      If persons of color claiming access to these defenses on the basis of critical psychology, racist abuses, or uncontrollable rage are to be denied mitigated sentences, then an informed carefully articulated doctrinal differentiation is demanded; a differentiation which squarely addresses the disparate application of these defenses in limiting access to a few, thereby privileging the privileged at the expense of others, namely women, people of color and the gay, lesbian, bisexual, and transgendered communities. In the absence of an explanation delineating the confines of the operation of these defenses, the emancipatorary potential of these defenses should be creatively utilized by able defense counsel to further the interests of their marginalized clients. Why not throw these defenses, infused with critical psychology where appropriate, into the mix, as it currently exists?

      As stated elsewhere, the ideal approach to the provocation, extreme emotional disturbance and diminished capacity defenses might be a conscious and informed application which prevents utilization of these defenses in a manner that itself works an equality injustice. In other words, pro-equality parameters might be articulated around the defenses such that the margins of their operation do not blur into marginalization and oppression on the basis of a particular jurisdiction's protected equality grounds such as race, gender, sex, religion, creed, color, class or sexual orientation. These defenses would not, therefore, be applicable if the outcome of their mitigatory potential would be to further subjugate women, if homophobia would be sanctioned, or if racism against traditionally marginalized communities would be legitimized, for instance. In this way, the application of the defenses discussed above would be tethered to the enumerated grounds of protection in a given jurisdiction's equality guarantees and further the interests of the historically disadvantaged. Such quests for equality are not within the exclusive domain of constitutional law--rather the law, in all its glorious manifestations, should be harnessed to promote justice. The criminal law affirmative defenses discussed above might, with the infusion of relevant critical psychology, provide one such opportunity to achieve the ends of justice.

 

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[a1]. Assistant Professor, Saint Louis University School of Law. B.A. 1991, University of Toronto; LL.B. 1994, University of Ottawa; LL.M. 2000, Columbia Law School; J.S.D. Candidate, Columbia Law School.