Law, Cultural Diversity, and Criminal Defense

Craig L. Carr, Lisa Johnson

• Publisher: Routledge
• Year: 2018
• ISBN:
  9780429015595
• Edition: 1
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

American legal scholars have debated for some time the need for a cultural defense in criminal proceedings where minority cultural information seems perti nent to a finding of criminal responsibility in situations where a minority cultural defendant has violated a valid criminal statute. This work presents a systematic analysis of this issue. Drawing from sociological, anthropological, and philosophical materials, as well as traditional legal discussions, the authors develop a scheme that indicates when cultural factors can be used as the basis for such a defense and when they are irrelevant to a finding of criminal responsibility. The argument moves from general concerns of social justice that apply under conditions of social and cultural pluralism to practical policy recommendations for the operation of American criminal justice. It thus connects more theoretical materials with the practical concerns of jurisprudence. The justification for legal recognition of a cultural defense in American criminal law is anchored firmly in American constitutional law.

1 Law, politics, and social justice

Scholarly interest in the prospects for an independent cultural defense in American criminal law emerged as a result of an influential note published in the Harvard Law Review (Note, 1986). The author(s) of the note framed the issue as a conflict between “America’s commitment to the principles of individualized justice and cultural pluralism,” on one hand, and “society’s interests in imposing certain common values on all of its members—interests that include maintaining order and forging bonds between its people,” on the other (p. 1296). The claim pressed by the note was that the case for a cultural defense “outweighs the arguments against it,” meaning, presumably, that the American commitment to individual ized justice and cultural pluralism outweighs the societal interest in fostering common values throughout the land.

But this way of putting things seems confused and contradictory. If the US really does have a commitment to individualized justice and cultural pluralism— a rather grand claim—then these principles would seem to belong to the catalogue of common values that society should “impose” upon all its members. Perhaps the tension alluded to resides between individualized justice and cultural pluralism on one side of the equation and the maintenance of order and the forging of common bonds between the people on the other. But this still does not eliminate the problem, for the common bond that needs to be forged may turn out to be the general acknowledgement of and respect for the principles of individualized justice and cultural pluralism. And if these things really are acknowledged and respected throughout the citizenry, it is hard to imagine that they would pose much of a threat to social order.

Perhaps this confusion can be eliminated if we move to a somewhat higher level of generality. This, in any event, is the initial move we propose to try. The author(s) of the note is right to insist that there must be some common core of values, beliefs, ideals, norms, or whatever that bind the general citizenry together and produce a common polity. At the very least, it seems appropriate to think that being on the same side politically means something substantially grander than a shared proximity of residence. And the author also seems justified in supposing that the United States is a culturally diverse place. Few scholars even remotely familiar with American history and sociology would wish to deny that the US is populated by various cultural communities that have immigrated to the land from around the globe (cf. Higham, 1955; Fuchs, 1990; Smith, 1997).

The reality of American cultural diversity calls attention to the fact that there exists throughout the land substantial difference with regard to belief systems, social practices, religious convictions, customs, languages, group histories, and the like. If we suppose, for the moment, that this description of difference is a reasonably accurate account of the social diversity present within the borders of the United States, there is reason to wonder about the nature of the political common denominator that forges political unity out of social, ethnic, racial, and cultural difference. If the historic and well-documented presence of racism, xenophobia, and nativism in American history is also called into view, further doubts about civil unity emerge. There are those who insist upon the need for America to be a melting pot where differences of all forms integrate into the “common culture” (cf. Huntington, 1981; Huntington, 2004). But scholars of various stripes have begun to abandon the melting pot imagery because the ingredients in the pot refuse to melt.

This introduces the sociological fact of normative difference, and with the acceptance of difference, the problem of pluralism emerges. How is it possible to establish political unity amidst such substantial social, cultural, religious, and ethnic difference? This is, and has been, a central challenge of civil association both in the US and across the planet at least since the modern system of states was established in Europe with the Peace of Westphalia in 1648. As an intellectual challenge, it has been a subject of conversation from Aristotle’s Politics to the present day, and as a practical political challenge it has been with us at least as long as political leaders began to understand that political order and stability are better achieved by pursuing and promoting shared standards of justice than by the force of arms.

The theoretical and practical challenges produced by the problem of pluralism come together when we stop to ask about the standards of justice that are, or ideally should be, shared by all the citizenry, standards that society should cultivate in the hearts and minds of its members. The standards to which we refer qualify as standards of justice because they involve the articulation of principles, acceptable to all citizens, that enable political unity to emerge from the fact of societal difference. This is the vision of justice that stands behind the American motto of e pluribus unum. Without asking at this point what these imagined principles are, it is important to hypothesize their existence, for this is what assures us that the US is a basically just state rather than a state where the strong rule the weak by force and intimidation.

If we move forward from this heightened level of theoretical generality, it might seem appropriate to ask if something like a cultural defense in American criminal law is consistent with, or mandated by, these formative political principles— however we might elect to formulate them. Framed in this fashion, the issue raised by consideration of a cultural defense in American criminal jurisprudence no longer displays any tension between principled commitments to individualized justice and the common values of the land, as the Harvard Law Review note would have it. Instead, the propriety of such a defense depends upon whether the formative principles of social justice present in the US support, mandate or require it.

This introduces the method we will employ to consider the desirability of a cultural defense in American criminal law. It might seem that the place to begin is with a theoretical inquiry into the basic principles of social justice that forge American political unity. But the matter is not quite this simple. Disparate historical and theoretical factors complicate matters significantly. Some of these factors push in the direction of the toleration of normative difference, but others counsel in favor of greater or expanded cultural (and not just political) homogeneity and social integration.

The purpose of this chapter is to survey these various historical and sociological factors in order to set the stage for a discussion of controlling principles of social justice, which we shall undertake in the third chapter. We are primarily concerned here with the historical and legal aspects of the American experience with normative difference. The story we are about to tell in this chapter identifies in American political and legal history some limited interest in tolerating certain forms of difference and some uncertain boundaries to the extent of the toleration present in American law. This does not take us back to the tension between individualized justice versus the common values of the land (whatever these might be) that concerned the author(s) of the Harvard Law Review note. Instead, the discussion in this chapter is intended to introduce a somewhat different tension between an appreciation of the importance of toleration in dealing with the problem of pluralism, on one hand, and the refusal to practice toleration when normative difference seems intolerable to dominant sentiments, on the other. Before it is possible to assess the need for a cultural defense, this tension needs some form of principled resolution. But our proposed resolution will need to wait until chapter three.

Déjà vu all over again

Social pluralism of some sort has been a prominent feature of American life from the arrivals of the Puritans in New England onward. It should hardly surprise, then, if the issues raised by the introduction of cultural variables into the courtroom have a familiar ring to them. Arguably, the first instance of the divisive nature of social difference amongst European settlers upon the shores of North America, and the first appearance of something like a cultural defense in an American court of law, occurred in Massachusetts Bay in the mid-1630s. The religious disagreement that resulted from the fragmentation of Christianity in Europe quickly found its way to the fledgling settlements of New England where the Puritan orthodoxy of Massachusetts Bay put into practice the venerable tradition of religious persecution that it left Europe to escape. The names of the leaders of early religious diversity in this “new” England are familiar enough to students of American history: Anne Hutchinson, Samuel Gorton, George Fox, and of course Roger Williams—to name but a few of the most prominent dissidents of the day (cf. Zakai, 1991, p. 135).

Of these early rebels, Roger Williams is perhaps the most interesting and, for present purposes, the most important. Williams brought with him to Massachusetts Bay from his native England certain religious convictions considered misguided and dangerous by the elders of the church in Boston. He was put on trial for his open espousal of what church leaders considered dangerous beliefs and famously banished from the Colony (Rosenmeier, 1968). Escaping the clutches of the elders of Boston, who would have shipped him back to England, Williams and a few hearty followers fled to the shores of the Seekonk River and established what would soon become Providence, Rhode Island and a colony dedicated to what Williams called “soul freedom”—liberty of conscience by another name (Brockunier, 1940, pp. 56–66). Williams’s new colony was com mitted to the practice of religious liberty; it was not the proper business of the civil government to regulate religious belief or to impose religious views on the general citizenry.

This apparently liberal view of church/state relations inclined later historians to consider Williams to be America’s first liberal democrat (cf. Bancroft, 1843; Parrington, 1927), but this bit of hyperbole is now generally dismissed by more contemporary historians who regard Williams as a most devout Puritan rather than a secular political thinker (Moore, 1963). Williams reached his conclusions about the importance of soul freedom from his own theological and doctrinal convictions; for him, the separation of church and state was a theological, and not a political, requirement. As such, only those who shared Williams’s theological viewpoints could also embrace the separation of church and state, and this is some distance from the contemporary liberal idea that the separation of church and state is a prior political commitment that holds, or should hold, regardless of one’s religious beliefs.

At the trial that resulted in a verdict of banishment, Williams invoked his notion of soul freedom to argue that secular authority should not demand compliance with those elements of the Decalogue that address a person’s relation with God. Because this was his religious belief (rather than a political conviction), Williams was in effect arguing that he and his followers should be permitted to live by their own religious convictions and practice their own theological ways free from state impositions to the contrary. This, as we shall see, can be regarded as a form of a cultural defense; it amounted to a plea on Williams’s part for the Bay to tolerate religious difference. Needless to say, the saints of the Bay summarily rejected this argument. In his famous and protracted exchange with Williams that followed the trial and banishment, John Cotton defended the position of the Bay with a familiar argument. Satan will entice the flock of religious followers away from devotion to God and lead them into a life of sin unless the flock accepts the guidance and religious wisdom of the Puritan elders. The familiarity of this argument becomes evident when we appreciate its paternalism: The religious leadership of the saints is essential to protect the flock against the greatest of all possible harms—estrangement from God.

Williams lost his battle with the saints of the Bay, but there is a sense in which he eventually worn the larger war. His concern for soul freedom was eventually transformed from a religious view into a political conviction generally honored throughout the land. The actual story of this transformation is no doubt a saga of religious fear (on the part of those who worried they might hold, or come to hold, views that were in the minority) coupled with political expediency, rather than a tale about a principled epiphany that swept across the new nation. But the road to standards of social justice is almost always paved with fears and expediency of this sort. Though it may be a sad commentary on the human condition, political struggle, typified by conflict and compromise, is a considerably more effective source of insight into acceptable standards of political morality than philosophical argument and reflection. But the historical process by which shared standards of social justice emerge within a particular political setting—the path the citizens of a state traverse in the process of forging a political morality capable of galvanizing all elements of the population into a common polity—probably matters less than the end result.

In the American context, early efforts to accommodate religious difference were shaped by the now clearly liberal conviction that an official political stance of liberality (freedom from bias or prejudice) should be adopted by the new federal government. This commitment was considered significant enough to be built into the fabric of the formative document of American law, the federal Constitution. Thus, with ratification of the First Amendment in 1791, Congress was denied the authority to establish a religion and prohibited from interfering with the free exercise of religion. The political and theological atmosphere had changed significantly in the one 155 years since Roger Williams was banished from Massachusetts Bay for advocating (among other things) the need for soul freedom. At least on parchment, the United States had become a substantially more liberal place, even if many of the states that still had established religions had not.

We shall return time and again to the Williams saga, for there is reason to emphasize the leitmotif of struggle than surrounds group efforts to achieve inclusion within American social life in spite of the normative differences that might distinguish these groups from the dominant culture of the land. At the moment, however, we want to suggest that the Williams story, coupled with the emergence of religious freedom as a civil liberty, is fairly typical of the struggle for inclusion that typifies the politics of pluralism. In the US, this struggle is undertaken as both a political and a legal challenge. We mean by this that the politics of inclusion typically plays itself out in legal form.

The ideals of freedom and equality built into key amendments to the Constitution are adapted to meet the challenges at hand, and if perchance the Constitutional weaponry necessary for the promotion of social justice is not there, there is a good chance it will be added to the document, as it was in the case of the civil war amendments. Sometimes there is push-back, of course, as in the case of the Equal Rights Amendment (ERA), but this ordinarily happens when there is reason to think sufficient constitutional weaponry is already in place to support legal standards of inclusion. Perhaps, then, it is not an overly glaring generalization to say (with law school professors and grade school teachers across the land) that law, and the ideal of the rule of law, are fundamental to the way a general sense of social justice is formed, articulated, and promulgated within American political culture.

It might seem strange, then, to suggest, as the Harvard Law Review note does, that there is a tension of sorts between the fact of cultural pluralism and a uniform system of law in the US, and this strangeness should now be apparent. If the brief telling of the saga of religious difference above is a proper guide, it seems safe to say that law in America both recognizes and protects difference. This is not an indication that the law treats some groups differently than it treats others, or that some groups are above or immune from the law. Instead, it is an indication that a common standard of social justice, prescribed and promoted through the institution of law, must allow different groups to live by those ways and practice those beliefs that matter to them. This, in turn, is perhaps the most succinct practical account possible of what Americans mean when they claim to live in a “land of the free.”

The idea of the rule of law holds fundamentally that no one is above the law (Waldron, 2002, p. 17). Everyone is subject to the same legal standards, including those individuals who happen to be the source of the law. But a rule of law that is capable of accommodating social pluralism must do two things: first, it must make certain that everyone honors its ends and ideals, and second, it must be sufficiently flexible to make sure that the commitment to honor difference is not compromised by otherwise reasonable legislative requirements (or specific statutes having the status of law). For some reason, elements of the population in the dawn of the twentieth century thought it wise to prohibit the use of intoxicating spirits, and for some reason, they managed to carry the day. Yet the use of sacramental wine was, and is, an important part of the religious practices of both Jewish and Catholic communities. Should a state committed to toleration of religious difference, but that has also decided that the use of alcoholic beverages is objectionable, allow or prohibit the use of sacramental wine for these groups?

We know, of course, that these communities were exempted from the strictures of the Volstead Act, and justly so. The wishes, concerns, fears, beliefs, and/or convictions of some group, whether or not it qualifies as a majority of the population, should not be imposed upon others in a way that compromises their ability to worship as they think proper. Motive does not matter here; no matter how sensible or benign the point behind such an imposition upon the religious practices of another might be, one group of people cannot tell another group of people what they can and cannot do when it comes to worshiping their deity. This is the character of the religious toleration inspired by Williams and safe guarded by the First Amendment. And it does not produce a dual standard of law, for the requirement of law is controlled by the single standard of the free exercise of religion ensconced in the fundamental law of the land. A common standard of law that applies equally and with equal force to all people, accommodates and protects religious difference and immunizes this difference from the ordinary actions of legislatures by disempowering the state from using the vehicle of law to invade their protected sphere of liberty.

The relevance of the emergence of religious toleration in the US for the question how to (or whether to) accommodate cultural diversity in American criminal jurisprudence should be reasonably apparent. If religious toleration is an appropriate standard of social justice that helps define political freedom in the US, might it not make sense to consider cultural accommodation in a similar light and suppose that Americans should also tolerate cultural difference by honoring and respecting the autonomy of the diverse cultural communities present in the body politic? It makes sense to tolerate religious difference because religion matters greatly to people. This is why we think that the forceful imposition of religious beliefs on some group that believes differently is oppressive, even if the religious views of the group imposed upon differ substantially from our own.

If culture also matters greatly to people, then the case of religious liberty would seem to represent a powerful precedent for thinking about how the US should approach the issue of cultural difference. This merely follows the tradition of inclusion in the US, a tradition that indicates how the country manages the problem of pluralism. Here political principle receives legal expression, and social inclusion is realized through the legal articulation and enforcement of the expectations of justice. This, in any event, is illustrative of the argument for the legal recognition of a cultural defense to follow.

Law and social homogeneity

“But wait!” as the familiar television advertisement goes, “there’s more.” If the previous section sketches the view that social justice in the US is typically formulated and endorsed through legal, especially constitutional, standards, it would seem to be a reasonably simple extension of the argument ...

Table of contents

• Cover
• Title
• Copyright
• Contents
• Introduction
• 1 Law, politics, and social justice
• 2 The question of culture
• 3 Social justice and legal practice
• 4 Criminal defense and cultural autonomy
• 5 Culture and the Constitution
• 6 Culture and criminal responsibility
• Bibliography
• Index