III. The Retributive Urge, Causation and America's Denial of Accountability
Deniers reject our collective accountability for the crack plague and its festering aftermath on two standard grounds:
A) impersonal social forces cannot cause people to choose to do wrong
or
B) even if empirical evidence proves that such forces do cause voluntary wrongdoing in the sense of increasing the rate at which people make wicked criminal choices, the very fact that some or many similarly situated non-criminals chose not to commit similar crimes-the very fact of a wicked choice-cuts off our collective accountability on “proximate cause” grounds.
I critique each of these grounds below.
A. Impersonal Social Forces Cannot Cause Persons to Make Wicked Choices
The first defense Deniers raise against our collective accountability for the crack plague and its legacy is the common assertion that voluntary criminal acts cannot be caused by impersonal macro-level social factors like poverty and social inequality. Stated more generally, the assertion is that voluntary human action cannot be “determined” by social factors or external influences and thus that there can be no “social determinism.” In keeping with this approach, Deniers attribute wrongful behavior to persons and their individual choices rather than to social situations and factors beyond their control. A bad person, Deniers declare, is different than a bad thing, bad event, or bad social fact. We may deplore tsunamis, avalanches or shark attacks, but we would not morally blame these impersonal destructive forces any more than we would blame a rock for falling on one's head, for we reserve blame and praise for persons with wills and character traits. Deniers contend that macro-level approaches offend the personal dignity of wrongdoers by treating them as things or events or Pavlovian bundles of conditioned reflexes without hearts or minds or wills. For Deniers and other proponents of personal responsibility, this is the Achilles heel of all macro-level explanations of wrongdoing and the flaw in the logic of all broad excuses for criminal misconduct: Such explanations and excuses, they contend, deny the personhood of criminals by treating them as bad “social facts” rather than bad persons. Accordingly, personal responsibility champions tell us we must condemn black criminals to show them respect and damn them in the name of their own personal dignity.
Nevertheless, if sound empirical evidence compels the conclusion that criminal wrongdoing is caused by social forces such as extreme social disadvantage, as it overwhelmingly does, then responsibility for the crack plague and its calamitous aftermath cannot so hastily be shifted to individual wrongdoers themselves. A clear causal link between social facts and voluntary wrongful acts paves the way for holding all beneficiaries of the boon we call the American way of life accountable for its criminogenic social conditions. Social science proves the existence of a clear causal link between social facts and personal, private, individual acts. For instance, in his pioneering work, Suicide: A Study in Sociology, Emile Durkheim showed how the seemingly most personal, private, and even “anti-social” decision of someone to end his own existence rather than continue to suffer a weary life-a decision ostensibly rooted only in individual psychology, private thought processes, and personal demons-actually reflects social currents and at bottom is primarily a social (not psychological or biological) fact. The social character of deliberate acts of violent self-destruction can remain hidden if we look only at a separate individual and his melancholy musings; but the social character of suicide leaps into bold relief when we look at rates of suicide. These suicide rates differ among societies, and among different groups in the same society, and they show regularities over time, with changes in them often occurring at similar times in different societies. “Each society,” Durkheim observes, “is predisposed to contribute a definite quota of voluntary deaths.” These regular, predictable, stable patterns of “personal and private” decisions to shuffle off this mortal coil-in short, these systematic suicidal tendencies-cannot be explained purely in terms of psychological facts, individual mental states or random aggregations of dire deeds. Rather, these patterns point to underlying causes that produce suicidal thoughts and acts in groups of individuals. The decisive question then is, “what factors explain these group-level patterns of voluntary self- destruction?” Earlier, I identified five macro-level social factors that explain the crack epidemic and the empirical evidence that points to them. But even if empirical studies persuasively establish that crime is driven by social factors like the five I identified, Deniers commonly fall back on the following seductive but false “proximate cause” defense against collective accountability for the voluntary misdeeds of wrongdoing.
B. Even if Social Facts Can Cause Crime, the Wicked Choices of Criminals Break the Causal Chain and Absolve Us as a Nation
Deniers' second and most formidable defense against America's accountability for undoing an entire generation of blacks through unnecessary and unwarranted mass incarceration runs thus: “Even if we acknowledge what the empirical evidence clearly demonstrates, namely, that macro-level social factors can cause people to commit voluntary criminal acts in the sense of dramatically increasing the rate of wrongdoing in certain neighborhoods and for certain social subgroups, why don't criminogenic social forces cause everyone subject to them to turn to crime? Why doesn't everyone who is poor, hungry, and socially marginalized rob convenience stores or post up under lampposts with palms full of dope? Why do so many poor and jobless people in general-and poor jobless blacks in particular-wade through criminogenic social currents without turning to violence or larceny or other wrongdoing?” To bolster the persuasive force of these denials of accountability, the person posing these skeptical questions may himself or herself be someone poor and black and extremely disadvantaged-a political poster child for bi-partisan Deniers and other champions of personal responsibility-who nevertheless resisted temptation and provocation to remain law-abiding and hence righteously critical of have-nots who have not. From this perspective, the very fact that many or most people subject to ‘criminogenic’ social factors do not commit such acts proves that such factors leave ample room for peoples' wills and moral character and moral agency to determine what they do. By this logic, the reason poor but law-abiding Americans suffer the slings and arrows of outrageous fortune with self-control while criminals do not is simply because the non-criminals have more moral fiber. For Deniers, the “vicious wills,” depraved hearts, and blameworthy choices of black criminals break the causal chain between criminogenic social facts and individual criminal acts and thus absolve America of accountability for the crack plague and its aftermath.
Deniers can find strong support in law and everyday morality for their contention that voluntary human action breaks the causal chain and thus cuts off the accountability of earlier individuals or entities that “set the stage” for subsequent wrongdoing. A core tenet of American civil and criminal law is that for an individual or entity to be accountable for harm resulting from destructive forces it unleashes (including destructive social forces), those forces must be the “factual cause” and the “proximate cause” of the resulting harm. Factual cause (sometimes called the “but-for” or “sine qua non” requirement) means that the resulting harm (here, the cataclysmic crack plague and its festering aftermath) would not have occurred without the defendant's acts (here, without the five macro-level social facts attributable to America's collective life and social reality). Proximate cause means that the defendant's acts, in addition to being a but-for cause, must be adequately or properly related to the resulting harm in the eyes of ordinary judges and jurors. So, for Deniers and other personal responsibility proponents, even if macro-level social forces are a factual cause of voluntary crack-connected criminal conduct in that such forces can cause dramatic spikes in crime rates as a function of neighborhood demography, these social forces are not a proximate cause of the extra criminal acts. According to these Deniers, this is because the wicked choices of wrongdoers intervened between the extreme disadvantage, on the one hand, and the individual holdups, drive-bys, and street crimes, on the other.
For instance, if a gasoline truck and trailer unit spills a massive amount of gas on an open highway and malicious bystanders willfully kindle a conflagration with a book of matches, some courts refuse to hold the truck owner accountable to innocent burn victims (much less to the malicious match-strikers themselves) because these courts conclude that the volatile spill was not the “proximate cause” of the resulting flames, even though it was clearly a necessary condition or factual cause of the fire. These courts say that the malicious match-strikers are the “superseding,” “efficient,” or “proximate” cause of the fiery destruction, thus shifting the entire responsibility for the flames to the willful wrongdoers and away from the truck owner whose volatile spill set the stage. For these courts, results (here, fiery destruction) that follow from the voluntary actions of the subsequent persons (here, the malicious match strikers) are caused by them alone.
This notion is sometimes called the doctrine of novus actus interveniens. Under the novus actus doctrine, later voluntary human action “displaces the relevance of prior conduct by others and provides a new foundation for causal responsibility.” Glanville Williams provides the classic defense of the doctrine:
A person is primarily responsible for what he himself does. He is not responsible, not blameworthy, for what other people do. The fact that his own conduct, rightful or wrongful, provided the background for a subsequent voluntary and wrong act by another does not make him responsible for it. What he does may be a but for cause of the injurious act, but he did not do it. His conduct is not an imputable cause of it. Only the later actor, the doer of the act that intervenes between the first act and the result, the final wielder of human autonomy in the matter, bears responsibility (along with his accomplices) for the result that ensues.
From this perspective, the violent and non-violent criminal acts of blacks during and after the cataclysmic crack plague are caused solely by them.
By analogy, for the 30 years encompassing the crack plague and it's still festering aftermath, America flooded black neighborhoods with combustible criminogenic conditions like extreme and concentrated social disadvantage; moreover, according to Senate transcripts and other reliable sources, in the critical period between 1982 and 1988, this nation, through its policymakers and high ranking government officials, helped jumpstart and fuel the crack epidemic by knowingly (but not maliciously or hatefully) helping supply many matchbooks in the form of guns and drugs to young black males wading through these volatile conditions. But, whereas combustible gas spills do not penetrate the skin of those it contacts, merely providing opportunities for wrongdoers to manifest pre-existing malice, combustible criminogenic conditions penetrate to the mental states of those immersed in them-these conditions mold mental states and thus manufacture malice itself. Specifically, extreme and hyperconcentrated disadvantage produced the hopelessness, resentment, hostility, and alienation-in a word, the malice-that motivate law-breaking, while an ample supply of guns and drugs, at least partly traceable to U.S. foreign policy priorities in the critical early years of the crack epidemic, provide the means and opportunities for the malice to find expression in law-breaking. In short, at the level of motivations and at that of opportunities for wrongdoing, strong empirical evidence points to our collective responsibility for flooding black neighborhoods with combustible criminogenic conditions that tempt, pressure, and provoke, then helping supply rafts of matchbooks to the young black residents in the name of national security.
This is precisely where Deniers invoke the novus actus doctrine as a “proximate cause defense” and assert that the wicked decisions of the individuals slogging through combustible social currents to pick up matchbooks and spread fiery destruction cuts off our collective accountability for their foreseeable and even statistically inevitable but nonetheless voluntary match-striking. For Deniers, in other words, the willful and wicked intervention of match-striking wrongdoers-the voluntary rubbing of each white phosphorous match head against a rough surface to produce a flame-breaks the causal chain between social facts and criminal acts. The results that follow from their voluntary actions are caused solely by them. For Deniers, however abundant the opportunities of the situation or strong the socially molded motivations of the person, choosing to strike a match constitutes a personal and individual “moral moment” that severs the link between social forces and crimes and erects a boundary between social facts and personal responsibility.
Thus, as applied to the crack plague that bore down upon and destroyed black communities in the 80s and 90s like a raging wildfire, Deniers can concede at the level of factual causation that social forces (such as the five macro-level social factors discussed earlier) dramatically increased the rate of crime and incarceration in black America and hence orchestrated the general movement of the fire, the general symphony of the conflagration, but they may nevertheless contend that each individual decision to dance to that malicious melody by striking a match breaks the causal chain between America's volatile social currents and the crackling flames. Put differently, mediating the relationship between social facts and criminal acts are criminal intents and vicious wills and depraved hearts, and for Deniers, these wicked inner states cut off our collective accountability for the criminal acts produced by our collective existence.
C. Competing Doctrine: Later Voluntary Wrongdoing Does Not Break Causal Chain
On the other hand, courts and juries and legislatures often refuse to treat subsequent voluntary human action as outside of causal law-that is, they refuse to treat such action as the sole cause of criminal results-and so are perfectly willing to say that blameworthy intervening action does not break the chain of causation or constitute an “independent intervening cause,” so long as the subsequent wrongdoing was foreseeable. In State v. Bier, for instance, when the defendant's wife said she wanted to commit suicide, he placed a loaded, cocked pistol within her reach, and she used it to kill herself. The defendant's conviction for negligent homicide was upheld on appeal-foreseeability was enough to establish proximate cause; a driver who negligently leaves his car idling and unattended can be the proximate cause of death or serious bodily harm resulting from a car thief on a joy ride foreseeability of thieves and joy rides establishes proximate cause; the owner of an apartment building in a crime-ridden location who fails to install locks on entrance doors or provide exterior lighting can be the proximate cause of robberies, rapes, and other violent assaults on tenants by intervening human agents who intentionally act to produce the forbidden result-foreseeability establishes accountability; one drag racer can be liable for causing the death of his racing partner despite his partner's voluntary choice to drive recklessly-again on grounds of foreseeability; in a game of Russian roulette, the surviving player will be liable for killing his partner even though the deceased freely chose to put the gun to his head and squeezed the trigger suffices; and finally courts routinely ignore or reject the novus actus or intervening-act doctrine and hold drug suppliers accountable for the foreseeable, though freely chosen, acts of their purchasers, including their purchasers' drug overdoses and resulting deaths.
So just like everyday morality, the law does not follow a hard fixed rule about causation and accountability when subsequent voluntary human actions intervene between forces that set the stage for criminal acts andthe criminal acts themselves. Rather, the law remains ceaselessly torn between two competing perspectives. Pulling one way is the perspective that underlies the novus actus or intervening act doctrine-indeed underlies all retributive approaches to blame and punishment-and is enthusiastically endorsed by tough-on-crime advocates, namely, the view that humans are solely and fully responsible for their freely chosen actions. As tough-on-crime advocates see it, any departure from this principle of sole and full responsibility puts us on the slippery slope to social determinism and the complete abdication of personal responsibility. Accordingly, this perspective refuses to see freely chosen human action as caused by preceding forces or factors. Pulling the other way is the perspective underlying the many exceptions to the novus actus doctrine and endorsed by advocates for the damned, a perspective which views “freely chosen” wrongdoing as caused by a combination of preceding social facts and the wrongdoer's ordinary human frailty. Accordingly, this perspective has no problem seeing voluntary human action as caused by preceding forces and factors. Pendulum-like, the law and our everyday moral intuitions swing back and forth between these competing conceptions of causation and accountability.
This raises the pivotal question in all debates about where to draw the line between societal accountability and personal responsibility for the harmful results of voluntary wrongdoing: What factors determine which way the causation pendulum swings in the minds of ordinary judges, jurors, lawmakers, voters and other Americans who must think about such matters in reaching decisions? What determines whether the subsequent voluntary acts of wrongdoers are deemed the sole causes of the criminal results? What makes ordinary people in some cases view the voluntary wrongdoing of criminals as breaking the causal chain between external factors and criminal acts (hence shifting all the responsibility for the criminal acts and harmful results to individual wrongdoers) while in other cases social perceivers and decision makers view such wrongdoing as caused by preceding factors (hence shifting accountability for those criminal acts and harmful results back to the earlier acts, facts, and circumstances)? To put it most simply, what determines how people think about proximate causation in criminal matters?
The answer is this: the perceived wickedness of wrongdoers and the urge they arouse in ordinary people for vengeance and retribution. The way perceptions of wickedness and vengeance drive our conclusions about causation is this: the more wicked wrongdoers seem, the more they stir “the retributive urge” to blame and punish; the more they stir “the retributive urge,” the more likely ordinary people are to view them as “independent intervening causes” or “superseding causes” of criminal harms disconnected from earlier forces and factors. Contrary to what we might expect, first come judgments about wrongdoers' blameworthiness, then come conclusions about whether preceding forces and factors caused the results of their voluntary wrongdoing. This sounds backward and counterintuitive because we expect the conclusion that A should be blamed for B's death to be partly based on the judgment that A caused B's death-“you can't blame me for a death I never caused” sounds sensible and implies that first we exhaust all questions of causation (these become threshold questions of accountability) and only then, after finding that A caused B's death, do we weigh A's blameworthy wickedness. Nevertheless, the everyday reality of our actual decision making reverses the idealized roles usually assigned to blame and causation, for we routinely blame individuals before we decide whether to call them “independent,” “superseding,” or “efficient” causes of voluntary criminal actions; in other words, we base our conclusions about causation on earlier conclusions about the wrongdoers' wickedness; once more, we base our conclusions about whether preceding forces and factors are the proximate cause of voluntary wrongdoing on conclusions about the wickedness and moral turpitude of the voluntary wrongdoers. However counterintuitive this pattern may initially sound, it pervades all moral and legal thinking. In the words of Meir Dan-Cohen,
[T]he statement that A caused B's death may, in ordinary speech, be as much a conclusory statement, based on the prior tacit judgment that A deserves to be punished for B's death, as it is an independent statement of fact which leads to that conclusion.
Put differently,
[T]he conclusion that A deserves to be punished may be directly and intuitively generated by the retributive urge, preceding and merely rationalized by the finding of a sufficient causal relationship between A's acts and B's death.
In short, the retributive urge-rooted in contempt for wicked and blameworthy wrongdoers-routinely determines how we think about causation.
From this very practical perspective on how ordinary people inside and outside courtrooms actually think about and determine causation, the question of whether A was the sole or superseding cause of B's death boils down to the question of whether punishing A is necessary to satisfy the retributive urge he arouses in us: If the fact of B's death at the hands of A does not produce a strong retributive urge-that is, if we are willing to partially or fully excuse A for bringing about the prohibited result-then we are more willing to call other factors preceding or surrounding A's act (including macro-level factors) the proximate cause of B's death. Conversely, the more we view wrongdoers as wickedly depraved, the more they stir the retributive urge for vengeance and retribution, the easier it is for us to conclude that their voluntary wrongdoing breaks the causal chain between earlier factors and their crime, shifts responsibility for crime entirely to them, and absolves us as a nation of accountability for the abundantly foreseeable results of our own social forces and currents.
All of this has particular consequences for this project, and for Nigga Theory more broadly. Quite simply, the more we view wrongdoers as that most distilled and concentrated form of wickedness, namely, morally condemnable niggers, the easier it is for us to deny accountability for their plight, for moral judgments drive our conclusions about causation and thus drive our conclusions about our collective accountability for the criminogenic effects of extreme disadvantage. Niggerizing black wrongdoers, in other words, helps us deny our accountability for the foreseeable effects of being extremely poor, hopeless, and black in America.
But again, a core aspect of Nigga Theory is hope. Once the moral basis for the retributive urge is shown to be illegitimate, irrational, and unreliable, it may become easier for fair-minded Americans to curb (at least temporarily) their urge to condemn long enough to recognize and acknowledge the causal links between crime and our own macro-level social forces, paving the way for us to accept collective accountability for the crack plague and its consequences. Macro-level perspectives-which an inflamed retributive urge obscures-can help law-abiding Americans see the common humanity in wrongdoers by helping them think beyond the boundaries of good and evil and praise and blame in criminal matters. Of course, it flatters those of us who are prosperous and law-abiding to believe that our material well-being and good name reflect virtue and pluck, not luck. But from the macro-level perspective, such thinking is unwarranted but nevertheless widespread and pregnant with political implications for our treatment of the truly disadvantaged.
Roy P. Crocker Professor of Law, University of Southern California Law School.
