my brother, Jerry Harris—for living in a manner consistent with their beliefs in racial and economic justice.
To my uncle, Fred Fine, for surviving McCarthyism and four years underground with his profound intellect and humanity intact.
To Stan Zaks for making our vision of a radical, multiracial community law collective a reality.
To Jeff Wilkinson and the Harp-Tones for “Sunday Kind of Love.”
To Bob Feinglass, Karen Jo Koonan, Ricky Jacobs, Peter Haberfeld, Ellen Zucker, Michael Griffith, Seiko Fuapopo, and Richard Ingram for helping me weather the storms of illness and disability.
To Dennis Roberts, Peter Gabel, and Chris Kanios, who created opportunities for me to work and contribute while disabled.
To my special clients, Huey Newton, Stephanie Kline, Stephen Bingham, Ronald Stevenson, and Leonard McNeil, for the courage they showed by fighting back while facing prison.
To my editors, Niko Pfund, Richard Delgado, Despina Papazoglou Gimbel, and Jean Stefancic, for their help and enthusiasm.
To Otilia Parra, Patrick Romero Guillory, Susan Gzesh, Jonathan Mosby, Catherine Carroll, Hazel Weiser, John Brittain, Haywood Burns, Charles Berrard, Dale Minami, George Colbert, Shirley Keller, Steve Saltz-man, Newton Lam, Fred Setterberg, Joe Matthews, Pamela Harrington and Abby Ginzberg, for research, commentary, and encouragement.
And to Nelson Mandela and Che Guevara; Frodo and Sam.
Black Rage Confronts the Law
Introduction
To be black and conscious in
America is to be in a constant
state of rage.
—James Baldwin
Felicia Morgan was beaten at home by her parents and in the streets by strangers. She was raped at fourteen and robbed at gunpoint at fifteen. Her fear and anger began to devour her. At seventeen, Felicia took a gun and, with her eyes closed, put one bullet in the head of Brenda Adams. She was tried for robbery and murder in 1992 in a Milwaukee courtroom. Had her abusive childhood led to the homicide? Had growing up in a community devastated by poverty and racism shaped her criminal behavior? Black Rage Confronts the Law explores these questions as it shows the connection between a society infected by white supremacy and the crimes its citizens commit.
Black Rage Confronts the Law is about race, crime, and the legal system. It tells the story of men, women, and teenagers who have robbed banks and committed homicides. It is about trials in which defense lawyers have argued that their clients’ crimes were in part a product of societal racism. It is the first attempt to document and critique the black rage defense in American legal history.
Black rage and the black rage defense are not synonymous. Black rage, in its positive and negative aspects, is examined insightfully by psychiatrists Price Cobbs and William Grier in their widely discussed 1968 book Black Rage, The frustration and anger of African Americans and their consequences for this country are also articulated in James Baldwin’s The Fire Next Time. Black rage is eloquently expressed in the works of Alice Walker, Gloria Naylor, and Walter Mosley. It is found in the poems of Gwendolyn Bennett, in the music of KRS-One, in the essays of bell hooks, in the speeches of Malcolm X, in the “Ten-Point Program” of the Black Panther Party, and in the very history of African Americans.
The black rage defense is a legal strategy used in criminal cases. It is not a simplistic environmental defense. The overwhelming majority of African Americans who never commit crimes and who lead productive lives against overwhelming odds prove that poverty and racial oppression do not necessarily cause an individual to resort to theft, drugs, and violence. But it cannot be denied that there is a causal connection between environment and crime. A black rage defense explores that connection in the context of an individual defendant on trial.
There has always been a strain in American jurisprudence which argued that the social and economic system must bear part of the responsibility for crime. Even the dominant legal philosophy, which perpetuates the myth that each person is free to act as he or she wishes, acknowledges that environmental conditions may lead to criminal behavior. Criminal law is based on the doctrine that the individual must be held responsible for his or her acts. But it has also reluctantly recognized that in cases where environmental factors do contribute to the crime, lawyers must be free to argue factors such as poverty and racism in defense of the charges or in mitigation of the penalties.
In a country divided by color and class, racial oppression and poverty have always been causal agents of theft and violence. However, lawyers have had difficulty translating these consequences of racism into the language of the criminal courtroom. The law does not allow the simple fact of racial discrimination as a defense to murder. Long-term unemployment is not accepted as a defense to bank robbery. French novelist Anatole France’s famous ironic quote about the law is an accurate explanation of the inequality of the American legal system: “The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread.” Although legal doctrine has maintained a claim of class neutrality and a facade of colorblindness, in some cases lawyers have been able to break through the criminal law’s resistance to allowing social reality into the courtroom. In 1846 William Henry Seward, one of the foremost lawyers and politicians of the time, defended twenty-one-year-old-William Freeman by arguing that the consequences of slavery and the continued oppression of black people had driven his client mad and caused him to commit murder. Seward thrust the awful conditions suffered by black people into the crucible of the trial. Unfortunately, this ground-breaking defense has basically been lost to the modern generation.
In 1925 Clarence Darrow, the most famous criminal lawyer in American history, again confronted the criminal law with the reality of discrimination and hatred against blacks. He defended Dr. Ossian Sweet, his wife Gladys, his brother Henry, and seven other blacks who were tried for murder when one of them shot into a mob of white people attempting to force the Sweets out of their home in a previously all-white neighborhood in Detroit.
The Freeman and Sweet cases were not described at the time as black rage defenses. But they were stunning examples of lawyers articulating how white supremacy had led to murder charges against blacks. They also were examples of confronting white juries, white judges, and a white legal system with the rage, pride, and strength of black people.
Between the 1930s and the 1970s the best-known black rage case was a fictional one. Richard Wright, in Native Son created the classic case of a lawyer arguing that the system of white supremacy had produced his client’s crimes. Although Native Son was published in 1940, Wright depicted the anguish and bottled-up fury experienced by many of today’s black youth. In the opening scene Bigger Thomas, a young black man, kills a huge rat that has attacked him in his family’s ghetto apartment. As his sister comforts their mother, Bigger tries to shut the crying out of his mind.
He hated his family because he knew that they were suffering and that he was powerless to help them. He knew that the moment he allowed himself to feel to its fulness how they lived, the shame and misery of their lives, he would be swept out of himself with fear and despair. So he held toward them an attitude of iron reserve; he lived with them, but behind a wall, a curtain. And toward himself he was even more exacting. He knew that the moment he allowed what his life meant to enter fully into his consciousness, he would either kill himself or someone else. So he denied himself and acted tough.
Bigger begins to work for a wealthy white family whose daughter Mary attempts to befriend him. One night, after heavy drinking, he helps her into her room and puts the semiconscious young woman in her bed. He then lies down next to her and kisses her. Suddenly, Mary’s blind mother knocks on the door. Terrified that he will be found in her bed, Bigger puts a pillow over Mary’s mouth to keep her quiet. She suffocates, and in a frenzy of fear Bigger tries to dispose of the body in the furnace. Later in the novel he murders his girlfriend because he is afraid that she will talk and give him away.
Bigger is charged with murdering Mary and raping her (which