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Article Excerpt
Why do certain self-defense cases--ones, for example, involving battered women who kill their sleeping abusers, or beleaguered commuters who shoot panhandling minority teens--provoke intense political conflict? The conventional and seemingly obvious answer is that people judge such cases in a politically partisan fashion. This paper, however, suggests a more complicated explanation. Social psychologists have shown that individuals resolve factual ambiguities in a manner supportive of their defining values, both to minimize dissonance and to protect their connection to others who share their commitments. This form of self-defensive cognition, it is submitted, shapes individuals' perceptions of violent interactions between parties seen to be complying with or defying contested social norms. As a result, even individuals who are trying to decide such cases based on honest and politically impartial assessments of the facts polarize along cultural lines. The paper presents the results of an original empirical study (N = 1610) that supports this hypothesis. It also explores the normative significance of this account of the origins of political conflict over self-defense cases and how such conflict can be mitigated.
INTRODUCTION I. DOCTRINAL AND THEORETICAL BACKGROUND A. Self-Defense: The Doctrine and Its Precarious Rationale B. Evaluating Self-Defense Evidence: Three Models 1. Neutral Umpire 2. Political Partisanship 3. Self-Defensive Cognition II. THE EXPERIMENTAL STUDY A. Study Design and Hypotheses 1. Sample 2. Vignettes 3. Measures 4. Hypotheses 5. Statistical Tests 6. Missing Data B. Results 1. Simple Outcome Judgments 2. SEM Analysis C. Discussion 1. Summary of Results 2. Issues for Future Research III. THE SELF-DEFENSIVE COGNITION OF SELF-DEFENSE: AN APPRAISAL A. Is There a Problem? Self-Defensive Cognition Meets Cognitive Illiberalism 1. Individual Judgments: Values or Blunders? 2. Collective Judgments: Accuracy, Legitimacy, and Illiberal Status Competition B. What to Do? 1. Against Exhortation and Excoriation 2. For Affirmation and Charity IV. CONCLUSION APPENDIX A. STUDY VIGNETTES
INTRODUCTION
Self-defense cases can be as politically controversial as they are physically violent. Their conflict-provoking potential is reflected in two icons: the battered woman who shoots her abusive husband in the head as he sleeps, and the beleaguered urban commuter who opens fire on an African-American teenager who solicits him for cash. (1) Behind these figures, however, stand broad, and continuously expanding, classes of disputed verdicts that variously move competing groups--conservatives and liberals, men and women, whites and minorities, straights and gays--to decry the partisan bias of the law. (2)
Contestation of this sort is disheartening. The contours of self-defense doctrine express the extreme value that the law attaches to human life and the dedication of the law to protecting the lives of all citizens regardless of social identity or moral outlook. Recurring political controversy not only confronts us with evidence that individual juries might sometimes be insufficiently dedicated to these values; it gives us reason to wonder how sincerely committed to these values all of us really are. If we are constantly falling into factional dispute about such decisions--one day applauding a verdict our adversaries denounce and the next day denouncing what they applaud--then either some large segment of our society is consistently rejecting the principles that inform the law or, more likely, we are all selectively rejecting them when we find their dictates unappealing. When push literally and lethally comes to shove, we all give in to the temptation to place our parochial attachments ahead of the universal values embodied in the law.
Or do we? Our aim in this paper is to suggest a more subtle and complex explanation of political conflict over self-defense. The account we propose does in fact acquit jurors, and the rest of us, of the charge of infidelity to the values embodied in the law. But it does so at a cost: the exposure of a threat to realization of the law's ends that is arguably even more troubling--because less amendable to detection and therefore to correction--than rank parochialism. The source of political contestation over self-defense, we will argue, are a set of related constraints on human cognition.
Known as "defensive bias" or "identity-protective cognition," one of these constraints refers to the tendency of individuals to form factual beliefs that affirm their defining values. It is reassuring to believe that behavior one admires is beneficial to society, and behavior one finds offensive detrimental; it is disquieting to contemplate that the opposite might be true, particularly when such beliefs threaten to put one at odds with persons whose character one respects and whose good opinion one covets. For these reasons, it is natural for individuals subconsciously to resist evidence that challenges factual beliefs supportive of their values, particularly when those beliefs are widely held within groups with which they identify. (3) This dynamic has been shown to be the source of intense political conflict over diverse factual issues, from the causes of global warming to the safety of guns, from the deterrent effect of the death penalty to the efficacy of vaccinating young girls for HPV. (4)
We contend that the same mechanism generates political controversy over self-defense cases. As the iconic cases of the battered woman and beleaguered commuter illustrate, deadly confrontations can interact with contested group norms--ones relating to who should be afforded respect and deference by whom, and what sorts of behavior are appropriate for persons occupying different roles. Where that happens, jurors who decide self-defense cases, and citizens who react to what juries decide, are impelled by a form of psychic self-defense to form a view of the facts that affirms their groups' norms. These citizens aren't ignoring facts that denigrate their group commitments; rather they are deriving the facts from their commitments. As a result, citizens end up culturally polarized about the outcomes of such cases despite their good-faith intentions to judge them in a nonpartisan fashion.
To support this view, we present the results of an original experimental study. That study, which involved a diverse sample of some 1,600 Americans, strongly supports the conclusion that political disputes over self-defense cases arise from self-defensive cognition of the type we posit.
The obvious question posed by these findings is, What to do? One answer, of course, would be nothing. Perhaps nothing can be done. More important, perhaps there's no reason to do anything anyway: since the operation of self-defensive cognition is perfectly consistent with good-faith efforts on the part of decisionmakers to be impartial, perhaps there's nothing morally problematic about judgments that reflect this influence. The discovery that self-defensive cognition is at work, it might be thought, dispels the anxiety that political controversy over self-defense cases is anything to fret about.
But we don't take this position. The contribution that self-defensive cognition makes to reactions to putative instances of self-defense, we believe, is a manifestation of another constraint on cognition that interferes with individuals' power of moral reasoning. Cognitive illiberalism refers to psychological tendency to impute harmful consequences (or to deny the same) to behavior that offends (or gratifies) one's cultural norms. (5) This condition subverts the ends of persons--we think the vast majority of citizens in American society--who genuinely believe the law should not be used to impose a cultural orthodoxy, even if the values being forced on others are their own.
Treating these conditions as they afflict judgments in self-defense cases is no easy task. The effects of self-defensive cognition can't be counteracted through admonitions to be "fair minded" and "nonpartisan." Citizens laboring under the influence of this form of subconscious cognitive motivation already are doing their best to be impartial.
Indeed, moralizing exhortations likely just make things worse. The phenomena of identity-protective cognition and cognitive illiberalism are related to--and indeed interact in a self-reinforcing way with--another psychological mechanism known as "naive realism." (6) Naive realism consists in the tendency of persons to recognize the influence of group values on the factual perceptions of persons with whom they disagree while being oblivious to the like influence of their own values on their own beliefs. A deliberative environment in which citizens admonish their opponents to be "fair and reasonable," then, predictably breeds reciprocal, self-righteous charges of "bias"--thereby magnifying the conviction of culturally aligned groups that their opposites are either morally bankrupt, profoundly stupid, or both. This common apprehension transforms seemingly "factual" policy disputes into occasions for illiberal forms of cultural conflict, making it even more likely that individuals will react with self-defensive skepticism to views of facts that differ from their own. (7)
This dynamic, though, does suggest one modest intervention that citizens of good faith could take to ameliorate political divisions over self-defense. It is that they stop decrying the bias of the law when they see verdicts with which they disagree, and stop accusing their cultural opposites of the same bad-faith for forming impressions of those verdicts with which they disagree. Instead, they should openly recognize what is in fact true--that nearly all of us are honestly trying to be fair, yet we all labor under the constraints of self-defensive cognition. An environment in which citizens of diverse commitments reacted this way to inevitably disappointing verdicts would itself go a good way to dissipating the disheartening perception that none of us is fairly committed to the values embodied in self-defense law. And it is also a condition of more concrete institutional steps that might be taken to counteract the influence of self-defensive cognition on the law.
We will present this account in three parts. By way of background, Part I examines the animating rationale of self-defense doctrine, and its relationship to decisionmakers' moral and psychological dispositions. Part II will describe and report the results of the experimental study we conducted to test the hypothesis that self-defensive cognition pervades the evaluation of controversial instances of asserted self-defense. And Part III will explain the distinctive nature of the problem this condition presents, and identify steps that might be taken to counteract it.
I. DOCTRINAL AND THEORETICAL BACKGROUND
We propose to test the claim that political conflict over self-defense verdicts derives from the psychic stake that individuals have in forming factual judgments that affirm their group commitments. To make the nature of this claim more concrete, we start with an overview of the principles--doctrinal and normative--of self-defense law and then relate these to models of how group affiliations, values, and factual perceptions can interact with one another in the application of the doctrine.
A. Self-Defense: The Doctrine and Its Precarious Rationale
The standard formulation of self-defense in American law is both straightforward and concise. In essentially all jurisdictions, a person who has not otherwise provoked aggression is entitled to resort to deadly force against another (and hence is protected from criminal liability for doing so) when she honestly and reasonably believes that deadly force is necessary to prevent an imminent threat of death or great bodily harm to herself. (8)
What is the rationale of the doctrine? Conventionally, theorists divide criminal law defenses into "justifications" and "excuses." The former protect a person from liability where breaking a law generates a state of affairs that is more desirable (along some utilitarian or welfarist metric) than would complying with it. The latter protect a person from liability for a crime, regardless of how undesirable the consequences, where that person is nevertheless morally blameless (usually, it is said, as a result of impaired volition). (9)
Self-defense doctrine can be rationalized along either of these lines. The doctrine can be characterized as a "justification," for example, on the ground that where it reasonably appears a choice must be made between the lives of an aggressor and a nonagressor the law prefers survival of the former. (10) Or, if one is averse to taking a position on the relative value of lives, authorizing the use of deadly force to repel a deadly attack can be defended as promoting a greater number of lives on net the desired state of affairs, in justification terms--by furnishing an incentive to aggressively disposed actors not to engage in deadly attacks in the first place. (11)
Alternatively, if one focuses on the likely volition-impairing impact of the circumstances in which the doctrine permits resort to deadly force, one can also see self-defense as an "excuse." On this account, the "primal impulse" of self-preservation (12) triggered by the prospect of an impending deadly attack is said to destroy one's capacity to control the urge to resort to protective violence and to disrupt reasoned contemplation of alternatives. (13) In the same spirit of forgiving impaired volition, the basis for admitting expert testimony on Battered Woman Syndrome and like conditions is that the standard of "reasonableness" used to judge a defender's belief in the need to resort to force should be sensitive to excusable defects in perception or will. (14)
But it turns out that one can fairly easily recast these excuse-based rationales in justification terms. If a person perceives (by virtue of genuine or imagined exigency) that she faces an act of deadly aggression, then no threatened punishment can possibly deter her from resorting to deadly self-defense. (15) Because punishment will make the defender suffer and deplete societal resources to no avail, affording her a complete defense instead generates a better state of affairs all things considered. (16)
In virtue of the plasticity of the "justification" and "excuse" framework, (17) it is more edifying to add to the analysis some consideration of the historical and political context surrounding American self-defense law. From this perspective, the expansive range of circumstances in which the doctrine does not warrant resort to deadly force furnish more insight into its rationale than the relatively confined ones in which it does.
The conventional formulation effectively permits the use of deadly force only to protect one's life. But one could easily imagine a doctrine that authorized the use of deadly force when necessary to protect myriad other interests--property, honor, autonomy, equality, and the like. This would still be a doctrine of self-defense, moreover, in any society that understood recognition of a person's moral agency to demand respect not just for his bodily integrity but for his dominion over property, his entitlement to social deference, his enjoyment of individual liberty, and so on.
The conventional formulation also addresses persons in universal terms, supplying a unitary standard that makes no reference to the social identities of the persons entitled to use deadly force or those against whom they are entitled to use it. Here too one could easily imagine things being different. The doctrine, for example, could authorize deadly force to be employed to protect against nondeadly threats (to the body, property, or status of the defender) when posed by certain lower types of persons to higher ranking ones. Or it could deny persons of the lower rank the authority to use deadly force even to repel deadly threats when posed by persons of the higher rank.
One reason it's easy to imagine a doctrine of this sort is that in fact it actually existed for centuries. Tolerance of the use of deadly force to protect nonvital interests--particularly incidences of status, such as displays of deference in public space and male dominion over the sexual lives of wives and daughters--was a conspicuous characteristic of societies guided by honor norms. (18) Historically, feudal and sectarian social orders did condition the privilege to use deadly force on persons' group identities in a manner reflective of the differential value of persons of different classes. (19) The law in antebellum American South did too, denying Blacks the authority to use deadly force to protect themselves from deadly assaults by Whites and affording Whites greater authority to use deadly force against Blacks than against fellow Whites. (20)
Contemporary American self-defense doctrine can be understood as embodying a distinctively humanist (21) repudiation of the moral understandings that inform these alternative honor- or status-protective self-defense regimes. The self-conscious refusal of contemporary doctrine to license deadly force to protect nonvital affronts, not only to one's person but even more significantly to prerogatives conspicuously associated with honor and status (e.g., the seduction of a man's wife or daughter) expresses the "supreme value of human life" recognized by "[a]ny civilized system of law." (22)
Contemporary doctrine, moreover, attaches such value to all persons' lives, regardless of their social identity or their adherence to any orthodox moral code. This humanist commitment is reflected not only in the formal universality of the language of the doctrine. It is expressed too by the "objective reasonableness" requirement. In subjecting the defender's perceptions to searching ex post review, the law, remarkably, imposes a duty on the defender to take care not to extinguish the wrongful aggressor's life needlessly. By refusing to make the admitted aggressor alone bear the risk of mistake, this feature of the doctrine expresses the message that even the lives of bad persons have "extreme value" in the eyes of the law.
This account, it's true, must confront a variety of widely observed modifications of the doctrine that challenge its humanist pretensions. In some jurisdictions, for example, individuals can resort to deadly violence not only to repel lethal physical attacks, but also to avert certain crimes, such as "kidnapping, forcible rape, forcible criminal sexual act[s] or robbery." (23) In many others, individuals can use deadly force to repel a deadly attack in a public space even when they could safely have retreated, (24) and in even more jurisdictions they can use deadly force to repel a deadly attack within their residence regardless of the feasibility of escape. (25) Because they seem to permit resort to deadly force when the alternative is apparently not death but rather an experience of profound subjugation or humiliation, these qualifications of the doctrine seem to bear the signature of the older, honor-based alternative. (26)
But the law (through those who expound it) is at pains to deny that this is so. The tolerance of deadly force to avoid certain crimes, for example, can be defended on the ground that the enumerated offenses present a risk of death sufficiently high in general to justify a presumption in all cases that deadly force to repel them is necessary to protect their intended victims' lives. (27) Dispensing with any duty to retreat can be attributed to the volition-destroying impact that threatened deadly assaults have on defenders: "detached reflection cannot be demanded in the presence of an uplifted knife," (28) after all. When such an assault occurs in the close confines of a person's residence, as opposed to the public square, both the statistical probability of danger and the reason-disrupting impact of fear converge to justify relieving her of the obligation to retreat. (29)
Critical commentators have shown the fragility of the assumptions underlying these rationalizations. (30) But in exactly the way that hypocrisy pays homage to virtue, the very energy with which those who expound the law are moved to rationalize away, rather than acknowledge, these departures from the humanist principles of conventional self-defense doctrine is a tribute to the shared professional and cultural understanding that these principles ought to be normative for our law.
Of course, rationalizations of these troublesome qualifications of the conventional doctrine are also an acknowledgement that those who are governed by contemporary self-defense law have not completely liberated themselves from the sensibilities that guided its honor-based predecessor. We do remain tempted to regard some important dignitary ends (honor, equality, autonomy, and the like) as worthy of protection even at the expense of the lives of those who threaten them. We understandably remain tempted to view the lives of those who threaten those interests as worth less than those of persons who live virtuous lives. And, as individuals who continue to define our identities with reference to certain intensely held group commitments, we no doubt remain vulnerable, in a way that can be expected to influence our assessment of self-defense cases, to differentially valuing the lives of those who do and don't share those affinities. (31)
In this sense, the rationale of the contemporary self-defense doctrine obviously isn't so much a passive reflection of what contemporary American values are as it is a considered articulation of what we believe our societal values should be. And in that sense, too, when we judge the appropriateness of a deadly confrontation between citizens--particularly ones who are behaving in ways that defy norms integral to our defining group commitments--the doctrine tests our capacity to live by the best understanding we have of ourselves.
B. Evaluating Self-Defense Evidence: Three Models
Self-defense doctrine, we've suggested, constrains not just individuals engaged in violent confrontations but also those who judge those individuals. In particular, it enjoins the judgers--legal decisionmakers, certainly, but the rest of us, too, to the extent that it rests on morally sound precepts--to set aside partisan values, particularly ones born of parochial group attachments, and evaluate the facts based on humanist criteria that attach supreme value to the life of all persons, regardless of social identity. That constraining function makes certain assumptions about how values founded on group commitments, perceptions of the facts, and judgments about the appropriateness of self-defense relate to one another. We now consider three simple decision-making models--one in which these phenomena interact in the way self-defense doctrine demands, one in which they clearly don't, and another in which whether they do or not is open to significant debate.
1. Neutral Umpire
The first model can be called the "Neutral Umpire" position. On this account, individuals base their judgments of the appropriateness of lethal self-defense entirely on their perceptions of the facts that the doctrine, consistent with its rationale, identifies as dispositive. Their parochial moral and cultural commitments play no role in their appraisals. This is the form of decision-making that the doctrine demands for realization of its humanist aspirations.
[FIGURE 1 OMITTED]
It's worth noting that nothing in the Neutral Umpire Model implies that judgments about outcomes in self-defense (or other types of) cases will or should be uniform across individuals. People will obviously disagree under this model whenever they differ about what the facts are. Moreover, it should be perfectly obvious that people of different backgrounds are likely to disagree about doctrinally relevant facts (most of which, such as the intentions of the parties, or what the consequences of refraining from deadly force would have been, cannot be directly observed) because of the varying impact that diverse experiences have on how they interpret bits and pieces of ambiguous evidence. What matters under the Neutral Umpire Model (or at least any conception of it that is even minimally susceptible of implementation) is only that individuals base their decisions on their honest view of the facts, even when that produces outcomes that disappoint their partisan values.
2. Political Partisanship
Next is the "Political Partisanship Model." This is a decisionmaking style that subverts the doctrine's aspirations. In it, evaluators judge the appropriateness of self-defense based entirely on their partisan values. They approve or disapprove of the use of lethal force based on group-based commitments that determine both the value they attach to human life relative to other nonvital interests and the comparative value they attach to the lives of particular persons. They simply ignore the facts that the law deems dispositive if those facts generate a result that their partisan values disapprove of.
[FIGURE 2 OMITTED]
Diverse groups of commentators perceive this model of deicisionmaking to be endemic. The most prominent version of this position is the "abuse excuse" critique, which takes aim at expert psychiatric testimony in cases involving battered women and other defendants exposed to chronic abuse or social privation. (32) Such testimony, the critics argue, rests on junk science and, more importantly, is incompatible with the premise of "individual responsibility" that has historically informed American criminal law. Decisionmakers' receptivity to such evidence, they maintain, is fueled by a form of "political correctness" that moves decisionmakers to express support for members of historically oppressed groups by excusing their use of violence against members of groups that have traditionally tormented them. (33) But "forsaking objective law in favor of shared group feelings," (34) warn the critics, is a dangerous move. "Such group[-]thought once led white jurors to acquit whites who had killed blacks ... and to convict blacks who may or may not have killed whites, whatever the evidence." (35) The beleaguered commuter, it is implied, is the unplanned progeny of the battered woman.
Other scholars have critiqued the "abuse excuse" critique in turn. Styled the "new normativity" by Victoria Nourse, (36) this position denies the premise that criminal law has ever genuinely been guided by a principle of individual responsibility uninformed by culturally partisan values. Courts and juries historically exonerated--whether by self-defense, insanity, or provocation--the cuckold who killed his unfaithful wife or her lover, the father who slew the "ravager" of his unmarried daughter, and the "true man" who stood his ground rather than flee the site of a deadly altercation. When they did so, they invariably cited generalizations about conditions that "unseat reason" and "disable self-control"--ones certainly no more well grounded in scientific data than the battered woman syndrome. But much more critical than the wholly unperceivable intensity of exonerated offenders' passions, New Normativists argue, was the manifest moral quality of them. Offenders were relieved from liability when (and only when) their fear, rage, or disgust revealed an appropriate commitment to goods (honor, patriarchal sovereignty, autonomy) that they were entitled to enjoy by virtue of their social roles and that their victims, by virtue of theirs, had no right to deprive them of. (37)
Growing receptivity to the claim of battered women and like defendants, according to the New Normativists, reflects merely a shift in the cultural norms that decisionmakers (and the rest of us) use to appraise the appropriateness of the values expressed in offenders' emotions. (38) It's a politically partisan objection to that shift in norms that explains why abuse-excuse critics see a denigration "individual responsibility" only in the law's solicitude to the battered woman, and not in its historical (and now contested) solicitude toward the cuckold. (39)
But as strongly as the New Normativists disagree with abuse-excuse critics, they actually share the critics' apprehension of the dominance of the Partisan Values Model of decisionmaking. Whereas the critics express disappointment over the denigration of the Neutral Umpire Model, the New Normativists take issue only with the reluctance of those who expound the law (whether from the bench or from the ivory tower) to admit that the Neutral Umpire Model is and always has been a fiction. Nourse and others call for a critical "unmasking" of the law--a relentless deconstruction of the "voluntarist" and "consequentialist" idioms out of which "justification" and "excuse" rationales are constructed--so that the law's "evaluative" face can be exposed to plain view. (40) Undistracted by assertions that only one side or the other is being partisan rather than "neutral," we can then proceed to debate which partisan values we want to inform the law--those that would exonerate the battered woman, those that would acquit the beleaguered commuter, or some other set of understandings entirely....
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