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That Justice is a blind goddess

Is a thing to which we black are wise:

Her bandage hides two festering sores

That once perhaps were eyes.

—Langston Hughes, “Justice”

The black rage claim is a political defense because it confronts the myths of the law. It is a political defense because it injects race and class into a legal system that steadfastly avoids an honest and true discussion of these issues. Before we can fully understand the problems of raising and winning a black rage defense, it is helpful to analyze the legal culture in which we are immersed. This chapter examines the role of the law and three of the major underpinnings of the legal system: courtroom rituals, legal reasoning, and the pretense of colorblindness.

The law is the most powerful expression of a society’s rules. The dominant purpose of the law in every country is to preserve the status quo, to protect people and institutions who have privilege and power, whether in government or in civil society. The law fulfills this purpose by the peaceful resolution of conflicts, but also by coercion. An example of the resolution of conflict through the legal system is the immense amount of time, money, and energy used in dealing with business arrangements. Politicians complain about criminal cases clogging up the courts, but in reality most lawyers’ time and a large amount of litigation concern capitalist business deals and conflicts. A 1995 University of Wisconsin survey reported that only 3 percent of lawyers focus on criminal law. In San Francisco in 1995, the public defender’s office had sixty-eight lawyers, eleven investigators, and thirty staff personnel. In contrast, one of the largest corporate law firms, Pillsbury, Madison, and Sutro, had 294 lawyers and 335 staff personnel in their San Francisco office alone. They also have ten other offices, including one in Hong Kong and one in Tokyo.

Criminal law gets most of the media attention, but corporate law is where billions of dollars are negotiated and litigated, and where decisions are being made which control our environment, our jobs, and the very quality of our lives. The law is necessary to facilitate and mediate these decisions, thereby avoiding an anarchy that would severely disrupt the free market and societal relations.

The law also mediates thousands of other conflicts in civil society, from landlord-tenant conflicts to consumer-related product liability suits; from simple car accident cases to major constitutional issues; from divorces to bankruptcy proceedings. In the United States in particular, law seems to surround us.

Peaceful resolution of conflict through the mutual acceptance of a judicial forum is one method of keeping society on an even keel. Another method is coercion—using the force of the state, or the threat of that force, on individuals in order to secure their obedience. And when they fail to obey, the state uses that force to inflict punishment. Robert Cover gets to the heart of the matter when he writes, “The Judges deal pain and death. That is not all they do. Perhaps that is not what they usually do. But they do deal death, and pain.”¹

If law’s primary purpose is to protect the powerful and keep things as they are, in America its secondary purpose is to protect individual rights. The Bill of Rights is the cornerstone of these protections. Of course, the rights of free speech, the right not to be tortured into confessing, the right to abortion, the right not to be forced to go to a segregated school, the right to a jury trial—these, and all of our liberties, did not come to us as self-executing protections leaping off the parchment of the Constitution into our lives. People fought for these rights, in the courts and in the streets. It is because of the right of due process for people who are arrested that the black rage defense can be raised and developed. It is because the law is more than stark, brutal coercion that the black rage defense can exist and be used to free persons charged with crimes.

If human history teaches us anything, it is that governments cannot rule by force alone. In every period of history people have fought against tyranny. Whether in the form of men shooting rifles on Bunker Hill in colonial America, or women marching with signs protesting the disappearance of family members at the Plaza de Mayo in Buenos Aires, Argentina, or schoolchildren with their voices raised in song in the streets of Soweto, South Africa, people ultimately will attempt to organize and rebel against arbitrary and unjust state power. Therefore, for a government to continue to hold power it must create a legal system that has an image of justice and some sense of fairness. It must also win the psychological acceptance of the majority of its citizens. How it does this has been the subject of increasing academic scrutiny. One of more prevalent theories of this process is put forward by Peter Gabel, a founder of the Conference on Critical Legal Studies and the president of New College and New College School of Law:

The principal role of the legal system within these societies is to create a political culture that can persuade people to accept both the legitimacy and the apparent inevitability of the existing hierarchical arrangement. The need for this legitimation arises because people will not accede to the subjugation of their souls through the deployment of force alone. They must be persuaded, even if it is only a “pseudo-persuasion,” that the existing order is both just and fair, and that they themselves desire it. In particular, there must be a way of managing the intense interpersonal and intrapsychic conflict that a social order founded upon alienation and collective power-lessness repeatedly produces. “Democratic consent” to an inhumane social order can be fashioned only by finding ways to keep people in a state of passive compliance with the status quo, and this requires both the pacification of conflict and the provision of fantasy images of community that can compensate for the lack of real community that people experience in their everyday lives.²

Society fashions this “democratic consent” through what has begun to be referred to as legal culture. Law has a culture of its own, including education, training, rules of behavior, philosophy, folkways, habits, language, economics, tradition, and stories. The courtroom is one of the key elements of this culture. The structure and rituals of the courtroom are intended to communicate the “three M’s” of the law: majesty, mystique, and might. The architecture of the courtroom divides the lawyers and the judge and his staff from the lay people. The judge’s seat is elevated above everyone else. There is an American flag near the judge, who wears a large black robe. There is a bailiff, usually a law enforcement officer in uniform, who enforces the judge’s rules for the courtroom. Sometimes these rules have no relationship to the process of justice. For example, some judges won’t allow members of the public to chew gum. When I was a law student observing a regular trial in Oakland Superior Court, I was told to leave the courtroom for chewing an antacid tablet. In the O. J. Simpson trial, Judge Lance Ito called a reporter into chambers for sucking on a cough drop. A number of years ago, in the United States District Court in San Francisco, the chief judge had a standing order that children were not allowed in the courtroom. My client’s wife was told by the bailiff to take her two children, aged ten and seven, out of the courtroom on the day their father was being sentenced to prison for five years. I refused to allow this clear violation of the Sixth Amendment’s right to a public trial, the First Amendment’s right of association, and the general constitutional right of privacy, which protects family relationships. Although the judge allowed the children to stay in my case, the standing order continued in force and lawyers continued to obey it.

Lawyers are coconspirators in perpetuating the alienation and symbolism of the legal culture and its message of power and authority. Let us travel through a typical proceeding with a criminal defendant and her lawyer. The defendant enters the courtroom through two large doors, stepping into a narrow aisle that leads to a half-sized pair of swinging doors through which she cannot walk unless accompanied by an officer of the court. She takes a seat in the pew-like benches behind the swinging doors. On the other side are large tables and fancy chairs. A podium stands in the center facing an impressive and elevated dais, and behind the dais is a marble wall covered in part by an immense American flag. A man in a uniform approaches those sitting in the pews, telling them to stop talking and reading newspapers. Then the lawyers, brandishing briefcases, enter the courtroom and take their places at the large tables. One of the attorneys nods at the defendant and she comes through the swinging doors to sit at the same table.

A man raps a gavel, crying “Hear ye, hear ye, all rise!” Another man wrapped in a flowing black robe enters through a door in the back of the courtroom and takes his place behind the podium in the dais. Only after he sits may the others be seated.

Names and numbers are called, passed, and continued for an interminable amount of time until the defendant finally hears her name. Her lawyer says he is filing a motion under section 1538.5. The district attorney says the charge is only a 415 and requests a conference in chambers. Court is then recessed for a discussion in the judge’s chambers. Afterwards the lawyers return to court and the man in the robe, continually addressed as “Your Honor,” asks the defendant a question. The defendant, finally part of the proceedings, succumbs to her attorney’s coaching and quietly answers “nolo contendre.” His Honor asks the attorney a question. The lawyer assures him of the repentance and good works of the defendant, which will be reflected in the presentencing report. Then the man in the robe dismisses all until the afternoon service.

As the defendant leaves the House of the Law she realizes that her case has been dependent on her attorney’s ability to translate human experience into legal dogma. She also understands that her future will depend on the judge’s acceptance of the defendant’s confessional as translated by her probation officer and attorney.

The lawyer, like the priest, is the middleperson between life and judgment. He suffers the initiation rites of his calling, wears its vestments, legitimizes its authority, speaks its language, partakes of its rituals, and maintains a monopoly on its mystery.

For the client, the lawyer, and the public, the result of this courtroom process is an acceptance of authority and a conditioned submission to its philosophy and rules. People enjoy rituals and symbols. Watching the court process is frightening, but it can also be exciting for the public. They feel secure observing authority in action. They admire and identify with the judges and the people in power, while at the same time accepting their own position as lower in the hierarchy of societal relationships. Just as a formal church service legitimates established religion, the traditional courtroom ritual legitimates the legal system.

Another major structural support of the existing legal culture is legal reasoning. This is a form of thought that presupposes existing societal relations. It does not allow for questioning of the political decisions that have led to our institutions. It makes it seem as though our laws are the inevitable result of human nature. The assumptions of the status quo can be found in every area of the law. Torts and real property law provide us with examples.

“Torts” is a required first-year class in every law school. It is also a word that those wide-eyed students can never adequately explain to their parents and friends. Basically, a tort is a harmful act committed by a person or a legal entity for which you can sue them. It is a civil case, as opposed to a criminal case. For example, if a person gets in his car and runs into your car on purpose, that is a criminal case for which he can go to jail. If a person gets in his car and runs into your car by accident, that is a civil case for which you can sue him for money damages.

In American law you cannot sue anyone unless they owe you what the law calls “a duty.” Drivers on the highway owe a duty to other people to drive safely. But in our country, an individual owes no legal duty to another individual solely because the two people live in a society together. Therefore, if you are at a public swimming pool and see a child drowning, you do not have to jump in to try to save him. Since you do not have a legal duty to this child, you do not even have to pick up the life preserver lying at your feet and throw it in the pool. You may have a moral obligation, but in America you have no legal obligation. If a lawyer brought a suit against someone at the pool for not throwing a life preserver to the child, the suit would be dismissed, probably without even a hearing in court. The law doesn’t have to be that way. We could have a society where people do not see themselves as atomized, isolated individuals. In many countries a person would have a legal duty to try to save the child.

In China there can be actual criminal penalties for failure to help a fellow citizen in a life-threatening situation. In 1995, a motorist was sentenced to two years in jail when he refused the pleas of a man whose wife was dying. The motorist was flagged down by the woman’s husband, who said she was gravely ill and pleaded with the driver to take her to the hospital. The motorist rejected the request and drove away. Under American tort law the motorist could not be sued, nor could he be prosecuted. In most law schools this example would not be discussed because our legal reasoning equates the isolated, nonresponsible human being with human nature.

Real property law affords another example of how legal reasoning presupposes the justice of existing societal relations. This area of law presupposes the unequal distribution of property, which is justified by the philosophical notions that in America everyone is free and that if a person has enough talent he or she can acquire property. If an individual fails to “make good,” it is his or her own failure based on lack of merit. What is fascinating about the law is that it incorporates the existing system of inequality, but then the law itself is used as a rationale for legitimating the very system that is imbedded within it. In other words, the law enforces rules as the natural order, when in fact those rules have already assumed one set of philosophical tenets and rejected any alternatives.

The term real property refers to houses, buildings, and land, as contrasted to personal property, which includes most other things one owns. Real property law in the United States allows one to own all the houses, buildings, and land one can afford. A person can make a living sitting in his home and collecting money from other people living in their homes, which he owns. An individual can own a tree or a beach. This arrangement is called capitalism. If a lawyer brought a lawsuit in an American court on behalf of neighbors who wanted occasional access to a “private” beach, the lawsuit would be dismissed immediately. A judge would not allow legal arguments regarding the public nature of a beach and whether it should or should not be owned by an individual.

This legal result is not common to all societies. Historically, among many Native American tribes land could not be owned by an individual. There was no proprietary interest in the environment. One could no more own a beach than one could own the ocean. People made fun of the Indians for allegedly selling the island of Manhattan for a few beads. But in Native American legal thought people could not own Manhattan Island, and therefore they could not sell it.

In modern-day America a tenant cannot refuse to pay rent on the grounds that the landlord owns more homes than she needs. But in Cuba one could raise such an argument and win. The Cuban General Law on Housing adopted in 1988 provides as follows: “Personal property in housing must be understood . . . essentially as a right to enjoyment of the house by the owner and his/her family, without having to pay anything after paying its price, but in no case can this right of personal property in the house become a mechanism of enrichment or exploitation.” In her 1994 book on Cuban law and society, Revolution in the Balance, Debra Evenson notes that the official interpretation of the Housing Law is that a persons home is to live in, not to make a living from. Cuban citizens may own a primary residence and a vacation home, but no more.

In the United States you have a Fourth Amendment constitutional right to have your home free from searches without a warrant. But you have no right to a home. Which right would the man sleeping under a Los Angeles freeway prefer? In Cuba, the Constitution states that the “socialist state strives to provide each family a comfortable place to live.” Decent housing for all is a goal of the society, and that goal is expressed in the Constitution as a legal obligation of the government. This would raise an interesting legal question if the Cuban state tried to prosecute a homeless person for sleeping in a park. That persons lawyer should be able to defend the case on the grounds that the state failed to strive to provide a decent place to live according to Article 8(c) of the Constitution. Actually, the parks and streets of Cuba are not filled with homeless people, even under its present economic crisis. But if they were, the legal system would provide a possible defense for the homeless.

The result in America is totally different, because our legal reasoning presupposes that there is no legal obligation for a government to provide housing for its people. In fact, what is taking place in America is the criminalization of homelessness.

There are many cases around the country dealing with homelessness. In 1995 the California Supreme Court ruled in Tobe v. City of Santa Ana that the city could prosecute and send to jail for six months any person who camps out or stores their personal belongings (a shopping cart for example) in a public park, street, or area. Justice Stanley Mosk, in dissent, angrily criticized the city for arresting persons “whose sole ‘crime’ was to cover themselves with a blanket and rest in a public area.” The decision noted the fact that the city provided shelters, but on any given night there were 2,500 more homeless people than there were beds in shelters. In Cuba, such a fact might be used as a defense, arguing that the government was failing to attempt in good faith to provide housing. But in the United States, this fact was considered legally irrelevant to the decision of the court. Is being poor legally irrelevant to a criminal defense? Is being black and suffering actual discrimination legally irrelevant to a criminal defense? These are the questions with which the black rage defense confronts the law. (This confrontation will be explored in following chapters).

Another major factor in legal reasoning is the myth that the law is made up of neutral, fair rules. Rules are supposed to become evident to any educated and legally trained judge or lawyer who objectively analyzes the facts and the previous legal decisions. This myth was articulated perfectly by California Court of Appeals Judge Edward Wallin: “I am never troubled by making a decision. I just decide the way the law dictates.”

The judge’s statement assumes that reason and logic determine judicial results. It denies the influence of the judge’s personal political views. The statement also carries the message that the “law” is just floating out there in space, majestically dictating the correct (fair and just) result. This denies the fact that judges must interpret conflicting arguments to arrive at a result, and that their interpretation is based on a myriad of factors that are rooted in present-day political conditions.

Anyone who does not believe that judges are influenced by public pressure, social movements, and their own prejudices and opinions should read The Brethren by Scott Armstrong and Bob Woodward, the journalist who helped uncover the Watergate story. This was the first popular book to go behind the black-robed mystique of the United States Supreme Court and expose the myth that judges interpret the law based on objective, neutral principles untainted by politics and predisposition.

One key legal concept supporting this myth is stare decisis, which says that judicial decisions flow from previous decisions, going back centuries to the beginning of English Common Law. Every lawyer searches musty old law books, or, these days, computer data bases, for “precedent”—that is, for judicial opinions that support her argument. Indeed, much of the skill of legal practice is taking those previous opinions and expanding or shrinking them to fit the facts of one’s present case. We spend an enormous amount of time in law school learning how to distinguish cases from each other, and how to analogize the facts or law of previous decisions to the facts of the case at hand. This prompts our friends and spouses to remark irritably that law students can only speak in analogies.