I. Should diminished capacity short of insanity, voluntary intoxication, and/or age serve as a defense or mitigation? Why or why not?
II. Is there an instance from the media or fiction where any of these defenses were raised? If so, were they successful? Did you agree with the outcome? Why or why not?
III. Write your own fact pattern involving one or more of these potential defenses, and then describe whether you think it should apply and why.
I disagree that diminished capacity short of insanity, voluntary intoxication, and/or age should serve as a defense or mitigation—for the same reason I disagree that diminished capacity of insanity, voluntary intoxication, and/or age should serve as a defense or mitigation: we have already tried, for more than long enough, the Satanic, self-righteous lottery system where we (A) set punishments as high as we possibly can without collectively blushing—even creating such vapid, sociopathic limericks as “three strikes, you’re out!;” and then (B) set up endless chases in endless mazes for waivers of prosecution (defenses and mitigations based on frivolous “incapacities” like insanity and age)—chased by the regretful and cunning alike.
Instead, I would prefer a system where a crime is a crime is a crime—a system where, when someone commits a crime, we take for granted that they can learn from their mistake, recover, and return to society. Short of this, if we insist on a justice-system set to step on and over a sane, sober, older person—to soothe an overzealous fear of “mercy robbing justice”—then I would prefer no waivers for that sanctimonious bloodlust, but rather an equality of that vengeance, likewise, for an insane, drunk youngster—and everyone in between.
About six months before OJ Simpson nearly decapitated his white wife, and about two years before major news broadcasted black people cheering in the streets at the reading of Simpson’s acquittal, and a long while before Chris Rock and other black comedians “joked” about how Simpson’s victim deserved her butchering—on December of 1993 in New York, a hate-filled, anti-white Jamaican immigrant named Colin Ferguson borded a Long Island train, admittedly intent on murdering white people. In the end, Ferguson murdered three white men and one white woman, murdered also a Korean lady and a Pinoy lady—both of whom Ferguson mistook as white—and injured nineteen others. Ferguson’s eventual defense attorneys, Ronald Kuby and William Kunstler, argued the following:
“Nobody is saying Colin Ferguson did a good thing, [rather] [w]e’re just saying that he was not responsible for his own conduct. White racism is to blame.”
It was coined the “black rage” defense. For years thereafter, Nation of Islam leader Louis Farrakhan and his disciple, Khalid Muhammad, drew massive cheers from massive audiences of anti-white maniacs by invoking Colin Ferguson. But the defense by Ferguson’s attorneys—one of whom also believed, “The more the white community fears African-Americans, the better”—was as successful legally as it was sound morally. So Ferguson was sentenced to “315 years to life” (then Saturday Night Live made “jokes” about Ferguson’s hate-filled, anti-white murders; and Bill Clinton and Rudy Giuliani declared that Ferguson’s racist mass-murder was proof of a need to restrict law-abiding citizens’ right to self-defense).
I agree with the guilty verdict—i.e. the rejection of the “not guilty of murder by reason of white racism” defense—because I do not believe that the wrath, cowardice, and hypocrisy of racism should mitigate culpability—not even when the racist murderer is black—not at all, much less for murder.
1. Chicago Tribune, The shame of ‘black rage’ defense (1994) available at https://www.chicagotribune.com/news/ct-xpm-1994-06-06-9406060097-story,amp.html
2. See generally, Judd F. Sneirson, Black rage and the criminal law: A principled
approach to a polarized debate, 143 U. Pa. L. Rev. 2251 (1995), available at https://scholarship.law.upenn.edu/cgi/viewcontent.cgi?article=3585&context=penn_law_review; Kenneth J. Weiss and Neha Gupta, America’s first M’Naghten Defense and the origin of the Black Rage Syndrome, 46 J Am. Acad. Psych. L. 4 (2018), available at https://pubmed.ncbi.nlm.nih.gov/30593481/
3. See note 1.
5. Maureen Fan, Colin Ferguson sentenced (Newsday, 1995), available at https://www.newsday.com/from-the-archives-colin-ferguson-sentenced-1.7002939
6. NBC, Cold opening: Colin Ferguson (1995), available at https://www.nbc.com/saturday-night-live/video/cold-opening-colin-ferguson/n10658
7. Maureen Dowd, Death on the L.I.R.R.: The White House; moved by killings, Clinton urges action on gun legislation (New York Times, 1993), available at https://www.nytimes.com/1993/12/09/nyregion/death-lirr-white-house-moved-killings-clinton-urges-action-gun-legislation.html
Once upon a time, a semi-attractive Asian woman was out walking in St. Paul, Minnesota. A week prior, her limp white boyfriend had attended an NRA gun-training class with her, so that they both could earn certification to get a permit to carry a concealed pistol in Minnesota. At the class, where she sat a few rows in front of Russ Lindquist, the semi-attractive Asian woman—alongside her limp, white, enabler boyfriend—asked the NRA instructor whether it would be lawful for her to pull out her gun to scare away a passerby who “creeps her out.”
A few weeks beyond the class, she got her permit and bought a gun, then went walking in downtown St. Paul—feeling safer than ever (and having long forgotten the answer to her question at the gun-training class).
After walking alone for a bit, the semi-attractive Asian woman suddenly noticed a young black guy had begun walking near her in the same direction, and was muttering to her about having “blood on his hands, and there’s no remorse—and blood on his dick, because he fucked a corpse.” Startled, the semi-attractive Asian woman screamed, pulled out her gun, and pointed it at the young black man.
The young man kept walking—having not noticed the woman visually, because he had been facing forward, minding his own business; and having not heard her, because his headphones were blaring the murder-rap poetry of millionaire DMX—whose song, “Bring your whole crew,” the young man had been singing along to.
If someone saw the semi-attractive Asian woman pull a gun out on the black man because of words that worried her, and she was charged criminally with a count of assault with a deadly weapon, and she raised a “pretty, worried woman defense”—should that serve as a defense to mitigate (or absolve) her culpability?
I do not think so. Young black men reciting murder-rap poetry while peacefully passing people in public is hardly unheard of, certainly no reasonable cause for concern—and much less a justification to respond with deadly force. Moreover, the use of deadly force—or even display of potential deadly force—is lawful only as a means to rightfully protect oneself or another from dangerous or deadly attack or an imminent threat thereof.
Here, the semi-attractive Asian woman was under no such attack or threat. Also, it is irrelevant that the semi-attractive Asian woman forgot the gun-training instructor’s response: that—no—she cannot brandish her gun to shoo away people who “freak her out.” Her forgetting this would not matter, because the standard to analyze the reasonableness of the threat she alleges here is an objective standard: It is not the pseudo-standards to which she is typically pseudo-held by her limp boyfriend and others who would give her—based on her semi-attractiveness—latitude to threaten others with deadly force at her own discretion (i.e. the standard that caused her to even think, in the first place, of asking the question that she did at the concealed carry class).
If we, as a society, allow people to invent their own defenses for crimes—whether a “black rage defense,” or a “worried woman defense,” or anything similar—then we risk imploding, even further, the rule of law.