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Article Excerpt
A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used.
--Oliver Wendell Holmes (1)
Although the slang epithet "nigger" may once have been in common usage ... [it] has become particularly abusive and insulting ... as it pertains to the American Negro.
--Louis H. Burke (2)
[C]rimes motivated by bigotry usually arise not out of the pathological rantings and ravings of a few deviant types in organized hate groups, but out of the very mainstream of society.
--Jack Levin and Jack McDevitt (3)
I. INTRODUCTION
Critical Race Realism is neither a novel term nor a novel concept. As early as 1992 and as recently as 2005, legal scholars Derrick Bell and Emily Houh, respectively, propounded this idea. According to Bell, "Black people need reform of our civil rights strategies as badly as those in the law needed a new way to consider American jurisprudence prior to the advent of the Legal Realists.... Racial Realism ... is a legal and social mechanism on which [B]lacks can rely to have their voice and outrage heard." (4) For Houh, "critical race realism encompasses not only the goals and methodologies of the broader critical race ... projects, but also some of the shared goals and methodologies of legal realism...." (5)
From our vantage point, Critical Race Realism is an amalgamation of Critical Race Theory and Legal Realism. As Critical Race Theory is the jurisprudential grandchild of Legal Realism, (6) both share similarities, but are yet quite different. Critical Race Theory was founded as "a race-based, systematic critique of legal reasoning and legal institutions." (7) Critical Race Theory was born out of the Critical Legal Studies movement. (8) Not only did it take part of its name from the adherents of Critical Legal Studies (crits), it took part of its ideology from the crits as well. For one, critical race theorists are "critical," quite like crits, in that they engage in a version of "trashing"--a hallmark of the crits. In this approach, they (1) take legal arguments seriously in their own terms, (2) discover that the arguments are "foolish," and (3) look for some order in the "internally contradictory, incoherent chaos [they have] exposed." (9) Critical Race Theorists do not endorse rights-trashing, like the crits. (10) Nonetheless, both sets of scholars engage in a "full frontal assault" on modern jurisprudence. (11) Earlier, the realists employed a similar technique called debunking. (12) This entailed subjecting questionable judicial opinions to logical analysis in order to expose their inconsistencies, unsubstantiated premises, and tendency to "pass off contingent judgments as inexorable." (13) Debunking flowed from two methods of attack: rule and fact skepticism. Rule skeptics argued that case decisions do not necessarily flow from general legal propositions--that logic did not govern judicial thought processes. (14) Other features were argued to have factored into the equation, (15) such as policy considerations. (16) Fact skeptics either argued that the facts found by the judge or jury are inconsistent with the actual facts (17) or that the reactions of judges and juries to facts are unpredictable. (18)
Despite these similarities, Critical Race Theorists are arguably distinguished from the realists in that the latter, and not the former, made the synthesis of law and social science a hallmark of their agenda. (19) The empirical exploits of Realists such as Charles E. Clark and William O. Douglas at Yale, (20) Underhill Moore at Yale, (21) and Walter Wheeler Cook and colleagues at Johns Hopkins (22) are well-documented. Many of the Critical Race Theory founders were formerly active in the law and society movement, which had its roots with the realists. (23) The crits, however, ultimately disagreed with their law and society colleagues on key issues. One issue that cleaved the crits from the law and society movement was the debate about the utility of empirical social science. In a 1977 article in the Law and Society Review, (24) crit theorist David Trubek assailed empirical social science. (25) First, Trubek suggested that empirical research legitimates the status quo in that it implies that facts researched were objectively "'there'" and "part of the permanent 'reality' of American culture." (26) Second, he argued that a scholar could not separate ideology from methodology in any type of research, including empirical research. (27) Ultimately, according to G. Edward White, Trubek argued that "to be politically reformist and methodologically neutral was a contradiction in terms." (28)
There is a current effort afoot, however, which seeks to reconcile Critical Race Theory with other elements of its realist roots. (29) As named by Bell and Houh, this movement is called Critical Race Realism. (30) As articulated by the authors, Critical Race Realism situates itself within the growing contemporary attempts--such as empirical legal studies, (31) the New Legal Realism Project, (32) and Behavioral Realism (33)--to integrate law and social science. Furthermore, its goal is to more systematically "enable and to compel law-making ... to take more account ... of the social facts upon which law must proceed and to which law must be applied." (34) This Article applies Critical Race Realist methodology in an effort to analyze how the law should construe the N-word in potential hate crime cases. It does so by systematically assessing the usage of that word on the part of Whites who might justify their usage by arguing that they are immersed in certain elements of Black popular culture. In addition to this analytic technique, the Article imports empirical research on implicit social cognition into our understanding of hate crimes law. In so doing, this Article adds to the scant legal scholarship on the N-word. (35)
Part II highlights a particular case in which a White person, who was allegedly immersed in Black culture, used the N-word during his assault of a Black man. Part III provides a general overview of U.S. hate crimes law and how racial epithets are traditionally viewed within this area of law. Part IV provides a brief historical and contemporary analysis of the N-word and how it has been and is understood. Part V makes two arguments in support of why, when the N-word is uttered in the context of a non-Black person committing a crime against a Black person, the crime should be construed as a hate crime. The first is that despite the proliferation of the N-word throughout Black popular culture, even Whites immersed in that culture generally do not use that word, especially when amongst Blacks they do not know very well. The second is that a remarkably large percentage of Whites harbor implicit and negative racial attitudes against Blacks. As such, a White person's utterance of the N-word while committing an act of violence or intimidation against a Black person may be seen as a leakage of these implicit racial biases. Part VI addresses why, despite Blacks' high rate of implicit anti-Black bias and more frequent use of the N-Word than Whites, the arguments we put forth about inter-racial hate crimes do not apply intra-racially among Blacks.
II. A HARVARD LAW PROFESSOR MAKES THE CASE: THE N-WORD DOES NOT NECESSARILY EQUAL RACIAL ANIMUS
On the morning of June 29, 2005, Glenn Moore, a twenty-three-year-old Black man, and his two friends trolled Howard Beach, a Queens, New York neighborhood. (36) Though they were looking for cars to steal, they stole no cars that night. (37) In the wrong neighborhood at the wrong time, Moore and his friends were chased by a group of young White men. (38) Among those men was Nicholas "Fat Nick" Minucci. (39) During the chase, Moore fell and was trapped by Minucci and his group. (40) Moore reported that Minucci called him "nigger" and said, "We'll show you not to come and rob White boys." (41) Minucci then robbed Moore of several clothing items and made him drop to his knees, whereupon Minucci struck Moore in the head with an aluminum bat while screaming "nigger." (42) At trial, witnesses testified that Minucci repeatedly and angrily called Moore "nigger" while chasing him and beating him in the head. (43) Albert Gaudelli, Minucci's lawyer, argued that Moore fractured his skull when he fell. (44) Frank Agnostini, one of Minucci's accomplices in the attack, testified that Minucci indeed hit Moore in the head and that the sound of the bat striking Moore's head "sounded like Barry Bonds hit a home run." (45) Minucci contended that he used the N-word as a benign address while preventing Moore from committing a crime. (46)
During the four-week trial, prosecutor Michelle Goldstein repeatedly used the bat to hit the juror box in an effort to approximate the sound the bat made when Minucci struck Moore. (47) As she did so, she noted that Minucci uttered the words, "You see what you get, nigger, for coming into our neighborhood?" (48) In contrast, Minucci's counsel, Albert Gaudelli, repeatedly argued that Minucci's use of nigger should be ignored--that Minucci's use of the word was not intended to be a racial epithet. (49) He explained that Minucci, raised in a racially diverse neighborhood next to Howard Beach, grew up with non-White friends and employed the N-word as part of his everyday vocabulary. (50) During his closing argument, Gaudelli indicated that "[p]eople use the word in different ways." (51) He went on to assert that "[t]here was no intent of bias or prejudice" (52) and to state: "You don't like that word. I don't like that word, no one over 30 likes it, but it's a fact that people under 30 use the word differently. Ignore this word, it's merely another descriptive word." (53) The jury took just over two days to convict Minucci of attacking Glenn Moore. (54) He was convicted of second-degree assault as a hate crime for the baseball-bat attack and first and second-degree robbery as a hate crime for stealing Moore's clothing items. (55) He was sentenced to fifteen years. (56)
The newsworthy aspect of this case was not the assault itself, but rather the expert testimony for the defense presented by two Black men. First was Gary Jenkins, a hip-hop music producer, who indicated that the N-word has "been permutated and morphed by a generation of younger people who moved it around and changed it into a matter of parlance." (57) In essence, as Jenkins noted, "There has got to be more to it than a word to find that someone is racist." (58) The second and more important, or at least higher profile, expert was Randall Kennedy: Rhodes Scholar, Michael R. Klein Professor of Law at Harvard University, and author of the book Nigger." The Strange Career of a Troublesome Word. Since 2002, Randall Kennedy has served as an expert witness about the use of the N-word in approximately a half-dozen court cases. (59) This was the first criminal case. (60) In a nutshell, Kennedy testified that Minucci, influenced by rap lyrics, did not believe the N-word was a racial epithet and insult. (61) He also testified that the N-word has multiple meanings and is not necessarily employed as a racial epithet. (62) Some Blacks were outraged not only by Kennedy's testimony, but also by the fact that he testified for free. (63)
III. AMERICAN HATE CRIMES LAW
"Hate crimes" is a bit of a misnomer in that the crimes are not typically about actual hate. Though the statutory definition of "hate crime" varies from state to state, a common thread is that the crimes are about bias and prejudice. (64) Hate crimes differ from two broad categories of crimes: (1)crimes committed with no particular regard to the victim's characteristics, and (2) crimes committed precisely because the victim is a specific person. Hate crimes differ from the former in that they are committed against people with specific identifying characteristics. Unlike the latter, hate crimes are not committed against people because of their personal identity. Those who commit hate crimes are not focused on who the victim is, but rather what he or she is. (65)
Law enforcement agencies employ bias crime indicators to determine if a hate crime has been committed. (66) Among these indicators are racial differences and comments, written statements, or gestures. (67) These are deemed to be the objective facts or circumstances present during the commission of the criminal act that suggest that the offender's conduct was motivated, at least partially, by some form of bias. (68) These indicators need not suggest that the offender's predominant motivation was bias. (69) The presence of any indicator merely suggests the possibility of a bias motivation for the offense, the presence or absence of which is determined on a case-by-case basis. (70)
Hate crime laws have been introduced as federal criminal statutes, state criminal and civil statutes, local ordinances, and university hate speech codes. Federal criminal statutes are generally intended to bolster state criminal laws. (71) State law, as opposed to federal law, violations result in the largest number of criminal prosecutions. (72) Prosecution under hate crime statutes generally requires the commission of a predicate offense coupled with some form of animus, with the statute typically enhancing the punishment for the predicate offense. (73) The states have taken various approaches to ethnic intimidation and violence. Some states created entirely new crimes consisting of bias-motivated commission of a crime already defined in the state's criminal code. Other states treat the assailant's bias motivation as an aggravating circumstance during sentencing or provide for enhanced penalties where bias was a motivation for crime commission. A few states statutorily define bias crimes as civil rights violations, just as federal legislation does. (74)
In order to convict an individual of a hate crime, the state must provide evidence that (1) the defendant committed the legally prohibited act; (2) the defendant selected the victim due to the victim's characteristics; and (3) the defendant demonstrated bias or prejudice because of said characteristic. (75) There are three approaches to defining the defendant's state of mind when committing a hate crime. (76) The "racial animus" approach requires evidence that the defendant's bias toward the victim's characteristics motivated the crime. (77) The "discriminatory selection" approach requires proof that the defendant selected the victim based on the victim's characteristics. (78) The "because of" approach requires proof that the defendant committed the crime because of the victim's characteristics. (79) Despite these statutory variations in requisite mental state, most state courts have interpreted their respective statutes similarly. In essence, all largely require a causal connection between the criminal conduct and the statutorily protected characteristics.
After the United States Supreme Court's ruling in Wisconsin v. Mitchell, (80) several courts interpreted their state statutes as resembling the language in the Wisconsin statute, which required that the defendant "[i]ntentionally select[]" the victim because of some protected characteristic. (81) Subsequent cases further refined this "intentional selection" concept by indicating that premeditation is not required. (82) What is required, however, is merely a "but for" connection between the criminal conduct and the victim's protected status. (83) Moreover, the defendant's bias motivation need only be a substantial reason for the criminal conduct and need not rise to the level of the sole reason for the conduct. (84) This does not mean, however, that mere biased thoughts result in enhanced punishments. (85) Consequently, proving that a defendant was motivated by bias or some form of discriminatory animus is a difficult, albeit necessary, task. (86) The defendant's racially-tinged words during the commission of the crime, however, often supply the requisite evidence. (87) One such word, frequently, is the N-word.
IV. "NIGGER": A GENERAL ANALYSIS OF THE WORD
The N-word "is derived from the Latin word for the color black, niger." (88) If, at any point, there was a benign intent behind the word, it eventually took a pejorative turn. In 1837, Hosea Easton wrote that the Nword:
[I]s an approbrious [sic] term, employed to impose contempt upon [Blacks] as an inferior race.... The term in itself[] would be perfectly harmless[] were it used only to distinguish one class of society from another; but it is not used with that intent ... it flows from the fountain of purpose to injure. (89)
Easton noted that often White adults employed the word as a tool to instruct White children how to behave and not to behave. (90) A child would be reprimanded by an adult for being "ignorant as a nigger," for having "no more credit than a nigger," or for being "worse than a little nigger." (91) Adults disciplined White children by telling them that if they misbehaved they would be made to sit with niggers, consigned to the "nigger-seat," or carried away by "the old nigger." (92)
Merriam-Webster's Collegiate Dictionary describes the word as "rank[ing] as perhaps the most offensive and inflammatory racial slur in English." (93) The N-word, according to Randall Kennedy, has become the paradigmatic racial epithet. (94) He writes that it is the slur that generates other slurs. (95) For example, "Arabs are called sand niggers, Irish the niggers of Europe, and Palestinians the niggers of the Middle East." (96) He adds that "black bowling balls have been called nigger eggs, games of craps nigger golf, watermelons nigger hams, rolls of one-dollar bills nigger rolls, bad luck nigger luck, gossip nigger news, and heavy boots nigger stompers." (97) Other recent commentators have also articulated that the N-word is the penultimate racial epithet. Judge Steven Reinhardt describes it as "the most noxious racial epithet...
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